Obligation of the contracting authority to communicate the scores obtained for each criterion but also for each sub-criterion for judging the offers
According to the provisions of Article 83 of the Code des Marches Publics: "The contracting authority shall inform any unsuccessful candidate who has not been the recipient of the notification provided for in Article 80 (1) of Article 80, the reasons for the rejection of his candidacy or his offer within fifteen days of receiving a written request for that purpose. If the candidate has seen his tender rejected even though he was not in accordance with Article 35 inappropriate, irregular or unacceptable, the contracting authority must also inform him of the characteristics and relative advantages of the tender. selected tender and the name of the successful tenderer (s) of the contract or framework agreement '.
In this case, the Council of State reminds that on written request of an unsuccessful candidate, the contracting authority is required to specify the characteristics and advantages of the offer of the company which implies the scores obtained by the unsuccessful candidate and by the grantee for each criterion and sub-criterion for judging the offers (also CE 11 March 2013, Minister of Defense, n ° 364827).
In the absence of communication of this information, it is up to the Judge of the pre-contractual summonses "to enjoin" to communicate all the missing information and to suspend the procedure until their complete communication (CE 20 February 2013, Biomnis Laboratory Laboratory, n ° 363656 , CE 1st April 2009, Minister of State, Minister of Ecology, Energy, Sustainable Development and Spatial Planning, n ° 321752).
Board of state
ECLI: FR: CESJS: 2014: 384014.20141219
Unpublished at Lebon collection
7th subsection judging alone
Mr Frédéric Dieu, rapporteur
Mr Bertrand Dacosta, public rapporteur
SCP BOULLOCHE; SCP NICOLAY, LANOUVELLE, HANNOTIN, lawyer (s)
Reading of the Friday, December 19th, 2014
IN THE NAME OF THE FRENCH PEOPLE
Considering the summary appeal and the complementary memorandum, registered on August 27th and September 11th 2014 at the litigation secretariat of the Conseil d'Etat, presented for the departmental household waste treatment union of Aisne (Valor'Aisne), whose head office is Faubourg de Leuilly in Laon (02000); the Valor'Aisne trade union asks the Council of State:
1 °) to cancel the ordinance n ° 1402931 of August 11th, 2014 by which the judge of the courts of the administrative court of Amiens, ruling in application of the article L. 551-1 of the code of administrative justice, has, on the request of the company Sita Dectra, on the one hand, annulled the procedure of awarding the contract of "treatment of residual garbage of communities of the department of Aisne", and, on the other hand, rejected the surplus of the conclusions of the parties;
2 °) ruling in summary, to reject the request of the company Sita Dectra;
3 °) to charge the company Sita Dectra the payment of the sum of 5,000 euros under Article L. 761-1 code administrative justice;
Considering the other parts of the file;
Given the code of the environment;
Given the code of public contracts;
Considering the code of administrative justice;
After hearing in open session:
- the report of Mrs Charline Nicolas, auditor,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Nicolaÿ, of Lanouvelle, Hannotin, lawyer of the departmental union of household waste of Aisne, and to SCP Boulloche, lawyer of the company Sita Dectra;
1. Considering that according to Article L. 551-1 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate he delegates, can be seized in case of breach of the obligations of publicity and competitive bidding to which the contracting authorities are subject to administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic consideration consisting of a price or a right of exploitation, or the delegation of a public service (...) "; that under the terms of Article L. 551-2 of the Code: "I. The judge can order the author of the breach to comply with his obligations and suspend the execution of any decision relating to the award of the contract, except where it considers that, in view of all the interests that may be adversely affected, and in particular the public interest, the negative consequences of such measures may outweigh their benefits. (...) "; that according to Article L. 551-10 of the same code: "The persons authorized to initiate the remedies provided for in Articles L. 551-1 and L. 551-5 are those who have an interest in concluding the contract and who are likely to be harmed by the alleged breach (...) ";
2. Considering that it appears from the documents in the file submitted to the judge hearing the application for interim relief that, by a notice of public invitation published on 24 April 2014, the Aisne departmental household waste treatment syndicate initiated a procedure award of a service provision contract for the treatment of residual household waste in the Aisne department; that the company Sita Dectra was informed of the rejection of its candidacy and the choice of the offer of the company Gurdebeke by a letter dated July 8, 2014; that, seized by the company Sita Dectra on the basis of the article L. 551-1 of the code of administrative justice, the judge of the recourse of the administrative court of Amiens has, by order of August 11, 2014, canceled the procedure of handover of this market; that the departmental syndicate of household waste of the Aisne appeals in cassation against this order;
3. Whereas, in order to annul the disputed procedure, the judge hearing the application for interim measures ruled that the Aisne departmental household waste treatment union could not, without disregarding the provisions of Article 45 of the Public Procurement Code and of its implementing decree of 28 August 2006, require in article 3.2 of the market consultation regulation that the applicant provide, in support of its offer, a copy of the prefectural decrees authorizing the operation of the treatment center in validity over the duration of the contract; whereas, however, Article 45 of the abovementioned code is applicable to the selection of applications by the contracting authority; that based on provisions applicable only to documents selection of applications to judge the regularity of the requirements relating to the composition of the file produced for the selection of the offers, the judge of interim relief has committed an error of law; that, contrary to what Sita Dectra argues, this plea may be invoked in cassation, even though it would not have been invoked before the judge of the interim, since it concerns the scope of application of the rule of law ; that, consequently and without it being necessary to examine the other ground of appeal, the departmental syndicate of household waste of the Aisne is justified to request the cancellation of the order contested;
4. Considering that in the circumstances of the case, it is necessary to settle the case under the summary proceedings brought by Sitra Dectra, pursuant to Article L. 821-2 of the Code administrative justice;
5. Considering, in the first place, that under Article 53 (I) of the Public Procurement Code: "In awarding the contract to the candidate who submitted the most economically advantageous tender, the contracting authority shall: 1 ° Either on a number of non-discriminatory and market-related criteria, in particular quality, price, technical value, aesthetic and functional character, environmental protection performance, performance in terms of development of direct supplies of agricultural products, the performance in terms of employability of the public in difficulty, the overall cost of use, costs throughout the life cycle, profitability, innovation, after-sales service and technical assistance, delivery date, delivery time or execution, security of supply, interoperability and operational characteristics nnelles. Other criteria may be taken into account if justified by the purpose of the contract; (2) Given the subject of the contract, on one criterion, that of the price "; that the regulation of consultation of the market defines three criteria of attribution, of which that of the technical value, "appreciated with regard to the technical memory", which must include a copy of the decrees prefectoraux authorizing the exploitation of the treatment center in validity on the duration of the contract, indicating the site's treatment capacity, the current authorized tonnages and the tonnes currently received; On the one hand, such a requirement is not in itself, contrary to what the applicant company maintains, constitutes a breach of equality between the candidates. whereas, on the other hand, it makes it possible to determine the means available to the candidates to execute the contract and thus to evaluate their tenders in the light of the criteria selected; that, consequently, the contracting authority did not disregard the aforementioned provisions by retaining such a requirement;
6. Considering, secondly, that under Article 53 (III) of the Code des Marches Publics: "Inappropriate, irregular and unacceptable offers are eliminated (...)"; that under 1 ° of I of Article 35 of the same code: "(...) An irregular bid is an offer which, while providing a response to the need of the contracting authority, is incomplete or does not respect the requirements set out in the notice of public tender or in the consultation documents. An offer is unacceptable if the conditions that are laid down for its implementation are in breach of the legislation in force (...) "; that the applicant company argues that the offer of the recipient is irregular and unacceptable on the grounds that in leading to a waste treatment outside the department of Aisne, the choice of this offer ignores the provisions of the plan of prevention and Aisne waste management system and thus the combined provisions of Articles L. 541-14 and L. 541-15 of the Environmental Code, under which decisions made by public entities in the field of waste management waste must be compatible with waste prevention and management plans; whereas, however, the objective of the Aisne prevention and waste plan, relied on by the applicant and which provides for limited treatment of waste outside the department, is fixed at a later date after the completion of the contract; that, consequently, the company is, in any case, unfounded to maintain that the offer of the successful tenderer, for this reason, is unacceptable and irregular;
7. Considering, thirdly, that under Article 80 of the Public Procurement Code, the contracting authority, as soon as it has chosen an offer in the context of a formal procedure, must notify the other candidates of the rejection of their tender and the name of the successful tenderer, indicating the reasons for his choice; according to Article 83 of the same Code, the contracting authority must also, at the request of a candidate whose offer has been rejected "when it was not in accordance with Article 35 or inappropriate it is neither irregular nor unacceptable (...) to communicate to it the characteristics and relative advantages of the chosen offer (...) "; that it results from the instruction that if the union communicated to the company Sitra Dectra, by a letter of July 8, 2014, the reasons for rejection of his offer and elements relating to the characteristics and advantages of the offer retained as well as the name of the successful bidder, however, he did not respond to his subsequent requests, submitted by letter of 22 July 2014, for communication of the price of the successful tender and the marks obtained by the successful tenderer under the " sub-criteria "for the evaluation of the criteria of technical merit and environmental performance, whereas, given the nature and importance of their weighting, these" sub-criteria "are likely to to influence the submission of tenders by candidates and their selection and must therefore themselves be regarded as selection criteria;
8. Considering that by not responding to these requests, the union has failed to meet its advertising and competitive bidding requirements; such failure is likely to harm Sitra Dectra; that, therefore, it is necessary, before ruling on the conclusions of the company Sitra Dectra tending to the cancellation of the procedure, to enjoin the syndicate of household waste treatment of the Aisne to communicate to society Sitra Dectra, with a copy to the Investigation Division of the Litigation Division, within eight days of the notification of this decision, the price of the successful tender and the marks obtained by the company awarded for the adequacy of the proposed organization, especially with regard to the interface with the collection and transfer, the technical capacity to perform the service, the quality and safety management, environmental impacts related to the execution delivery and commitment to an environmental approach; whereas, on the other hand, it is not necessary to grant the other requests for communication, since they are foreign to the characteristics of the tender selected;
Article 1: The order of 11 August 2014 of the judge of the Amiens Administrative Court is canceled.
Article 2: The decision of the Sitra Dectra company is stayed until the Aisne departmental household waste treatment union has communicated to it, within eight days following the notification of this decision. , with a copy to the subsection of the litigation section responsible for the investigation, the information concerning the bid price of the successful bidder, as well as the ratings obtained by the successful bidder under the following criteria: adequacy of the proposed organization, especially with regard to the interface with the collection and transfer, the technical capacity to perform the service, the quality and safety management, the limitations of the environmental impacts related to the performance of the service and the commitment to an environmental approach.
The company Sitra Dectra will have a period of eight days from the communication of this information to produce new observations.
Article 3: This decision will be notified to the departmental household waste treatment union of the Aisne, the company Sita Dectra and the company Gurdebeke.