The mistrust of the variants is not sufficient to demonstrate the lesion
The vagueness of the variants is not sufficient in itself to justify an interest wronged. In the present case, an unsuccessful candidate, the company Alho Systembau challenged the rejection of his tender by the contracting authority on the ground of the vagueness of the minimum requirements which had to be respected by the possible variants that it was possible to propose.
Rule n ° 1:
The insufficient precision of the minimum requirements of the variants is not sufficient in itself to establish the existence of an interest injured. It is still necessary to demonstrate the lesion or the risk of injury for the unsuccessful candidate. In this case, the Conseil d'Etat considered that the injury could not be invoked insofar as it is the basic offer of the successful tenderer and not its alternative offer. The breach pleaded was therefore unrelated to the possible injury that would have been to withhold an offer on the basis of imprecise parameters.
Rule n ° 2:
The Council of State has already had the opportunity to recall that the irregularity of the candidacy or the offer of an applicant can be invoked in the framework of a proceeding in pre-contractual recourse, and raise of ex officio by the judge of interim measures even if this application had not been rejected for the reason raised during the proceedings by the contracting authority (EC 27 October 2011, Department of Bouches-du-Rhône, No. 350935). This is the reason why certain contracting authorities no longer hesitate to engage in genuine delaying tactics which consist in invoking such an irregularity during the proceedings even though they have not issued the slightest criticism of the application or on the applicant's tender during the entire procedure for the selection of applications and tenders.
In this case, the Council of State took the opportunity to put an end to this type of maneuver at least as regards the possible incompleteness of applications. Indeed, if an irregular offer can not be regularized in formalized procedure, this is not the case of an incomplete application pursuant to Article 52 of the Public Procurement Code (EC 25 Mar. 2013, Department of the Herault, Req. No. 364824). In the formalized procedure, the analysis phase of the applications must be clearly distinguished, during which the contracting authority may ask the candidates to complete their application and the analysis phase of the tenders, at the end from which all incomplete files must be rejected without possibility of regularization.
The Conseil d'Etat therefore decided to render this type of plea of inadmissibility inoperative insofar as it considers that such an irregularity concerns a stage of the proceedings in which that irregularity can still be corrected. Since such an irregularity can be regularized, the contracting authority can not use it in the course of proceedings in order to avoid the sanction of the pre-contractual injunction.
Rule n ° 3:
A rejection letter indicating the classification of the unsuccessful company, the marks obtained for each criterion and sub-criterion, the name of the successful tenderer and his marks is considered sufficient to meet the requirements of Article 80 of the Code. public procurement.
Rule n ° 4:
The absence of certain members of a jury during the deliberations is not sufficient to taint the opinion given by the jury as irregular, since the quorum of half of the members provided for in Article 25 of the Code des Marches Publics is reached.
Board of state
ECLI: FR: CESSR: 2014: 384180.20141203
Mentioned in the tables of Lebon collection
7th and 2nd subsections combined
Mrs Natacha Chicot, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP ROCHETEAU, UZAN-SARANO; SCP BARTHELEMY, MATUCHANSKY, VEXLIARD, POUPOT; SCP LYON-CAEN, THIRIEZ, lawyer (s)
Reading of the Wednesday, December 3rd, 2014
IN THE NAME OF THE FRENCH PEOPLE
Considered 1 °, under n ° 384180, the summary appeal and the complementary memorandum, registered on September 3rd and 18th, 2014 to the litigation secretariat of the Council of State, presented for the department of Loire-Atlantique, represented by the president of the general Council ; the department of Loire-Atlantique asks the Council of State:
1 °) to cancel the ordinance n ° 1406542 of August 19, 2014 by which the judge of the emergency of the administrative court of Nantes, ruling on the foundation of the article L. 551-1 of the code of administrative justice, has, to the request of the company Alho Systembau, canceled the award procedure for the design and construction of a so-called "modular" college;
2 °) ruling in summary proceedings, to reject the application submitted by the company Alho Systembau;
3 °) to charge the company Alho Systembau the payment of the sum of 7 000 euros under Article L. 761-1 code administrative justice;
Considered 2 °, under n ° 384222, the summary appeal and the additional memorandum, registered on 4 and 18 September 2014 to the litigation secretariat of the Conseil d'Etat, presented for the company Eiffage Construction Pays de la Loire, whose head office is 11 route de Gachet BP 20704 in Nantes (44307), the company In Situ, whose registered office is 7 rue Paul Pélisson in Nantes (44000), the company BH SAS, whose head office is rue Charles Tellier ZI of La Folie Sud, La Le Vicomte chair in La Roche-sur-Yon (85036), the company Serba, whose headquarters is 10 bis avenue Marechal de Lattre de Tassigny in Rezé (44412), the company Albdo, whose headquarters is 10 rue de la Rabotière in Saint-Herblain (44800), the Synergie Bois company, whose head office is 34 rue du Puits Gourdon in Cholet (49300), the company ITAC, whose headquarters is 5 rue Menou in Nantes (44000), the company Process Cuisines, whose head office is rue Edouard Branly ZA La Massue in Bruz (35170), the company Zephir Landscapes, whose head office is Quai de Versailles, Péniche Nautilus in Nantes (44000), Linéa architects, whose headquarters is 119 rue des Douves, BP 50061 in Ancenis Cedex (44152); the applicant companies ask the Council of State:
1 °) to cancel the order referred to under No. 384180;
2 °) ruling in summary, to reject the application of the company Alho Systembau;
3 °) to charge the company Alho Systembau the payment of the sum of 12 000 euros under Article L. 761-1 code administrative justice;
Considering the other parts of the files;
Considering the note under deliberation, recorded on November 14, 2014, presented for the company Alho Systembau;
Considering the note under deliberation, registered on November 17th, 2014, presented for the companies Eiffage construction Pays de Loire and others as well as for the company Urbaterra;
Given the code of public contracts;
Considering the code of administrative justice;
After hearing in open session:
- report by Ms Natacha Chicot, auditor,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Barthélemy, Matuchansky, Vexliard, Poupot, lawyer of the department of Loire-Atlantique, to SCP Rocheteau, Uzan-Sarano, lawyer of the company Alho Systembau, and to the SCP Lyon-Caen, Thiriez, lawyer of the company Eiffage construction Pays de la Loire and others;
1. Considering that the appeals referred to above are directed against the same order; whereas it is necessary to join them in order to give a decision;
2. Considering that under the terms of 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 advertising 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 (...) ";
3. Considering that the documents in the file submitted to the Judge of the Administrative Court of Nantes show that the Department of Loire-Atlantique has launched a restricted tender procedure for the award of a public contract for design-realization relating to the design and construction of a so-called "modular" college; that, by a decision of July 16, 2014, the grouping having the company Léon Grosse for agent, of which the company Alho Systembau was member, was informed of the rejection of his offer and the attribution of the market to the grouping having for mandatary the company Eiffage construction Pays de la Loire; that, by the order contested, the judge of the interim administrative court of Nantes, seized by society Alho Systembau on the basis of Article L. 551-1 code administrative justice, canceled the procedure of handing;
4. Considering that under I of Article 50 of the Code des Marches Publics: "For contracts awarded under a formal procedure, where the contracting authority relies on several criteria for awarding the contract, it may authorize candidates to present variants. The contracting authority shall indicate in the public invitation to tender or in the consultation documents whether or not it authorizes the variants; if there is no indication, variants are not allowed. / The documents of the consultation mention the minimum requirements that the variants must respect as well as the modalities of their presentation. Only variants meeting these minimum requirements may be considered "; that Article 2.1.2 of the consultation regulation specified that the candidates could submit "an offer containing variants, that is to say different technical solutions on particular points of the program provided that they make it possible to obtain equivalent or superior performance ";
5. Considering that, in order to annul the award procedure, the judge of the Administrative Court of Nantes found that the lack of details on the minimum requirements which had to be met by the variants, in accordance with the provisions of Article 50 of the Public Procurement Code cited above, was likely to have prejudiced Alho Systembau as soon as it had been able to influence the presentation and selection of tenders; that by ruling thus, while it appeared from the documents of the file subjected to its examination, on the one hand, that society Alho Systembau was limited to invoke the misunderstanding of the article 50 of the code of the public markets, which is not enough does not, on its own, establish the existence of an injured interest, and, secondly, that it is, moreover, the basic offer of the awarded group which has been retained by the contracting authority and not alternatively, the judge hearing the application for interim measures incorrectly described the facts submitted to him;
6. Considering that it follows from the foregoing, without it being necessary to consider the other grounds of the appeals, that the applicants are justified in seeking the annulment of the order under appeal;
7. Considering that it is necessary, in application of the provisions of Article L. 821-2 of the Code of Administrative Justice, to settle the case under the procedure of interim relief initiated by the company Alho Systembau;
On the admissibility of the application of Alho Systembau:
8. Considering that under Article 52 of the Code des Marches Publics: "I. - Before proceeding to the examination of the candidatures, the contracting authority which finds that parts whose production was claimed 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 may ask candidates who have not demonstrated the legal capacity to submit their application to regularize their file under the same conditions. (...) ";
9. Considering that, to defeat the request of the company Alho Systembau, the department of Loire-Atlantique maintains that his candidacy was inadmissible and that this company is, therefore, insusceptible to be aggrieved by the shortcomings it invokes, therefore, that, like other companies in the group to which it belonged, it did not transmit a DC1 application form with an original signature of the person authorized to commit the undertaking but a simple copy;
10. Whereas, assuming that the department doubted the legal capacity of all or some of the signatories of the application files of the companies members of the group having the Léon Grosse company as agent when it examined these files, it was open to him either to reject the application of this group or, in application of the provisions cited above of Article 52 of the Code des Marches Publics, to request a regularization on this point; Thus, failing to have rejected as inadmissible, the department can usefully argue, in defense before the Judge pre-contractual, the incomplete nature of the application file of the applicant company to argue that his argument from the or alleged breaches would be inoperative;
On the means presented by the company Alho Systembau:
11. Considering, in the first place, that it follows from the investigation that if the Department of Loire-Atlantique did indeed, as indicated in particular in Article 7-1 of the consultation regulations, promote, in the context of the work carried out by the candidates for the preparation of their offers as well as in the assessment of the respective merit of the offers, the projects guaranteeing the modular and transferable nature of the totality of the equipment, it did not make of this objective a technical specification imposed on candidates under penalty of irregularity; that the fact that the assessment of the cost of the transfer of the equipment has underestimated it in the event of a total transfer, because it does not include the cost of the reconstruction identical to the elements transferred, can not be regarded as an irregularity of the offer; that finally the society Eiffage construction Pays de la Loire confirmed, within the framework of the requests for clarifications authorized by article 69 of the code of the public contracts relating to the procedure of procurement of design-realization, that the offer of the group it represented provided for the receipt of equipment before the deadline provided for in the consultation documents; that the plea drawn from the irregularity of the offer of the awarded company can not, therefore, be dismissed in its various branches;
12. Considering, secondly, that the applicant company maintains that Article 2.1.2 of the consultation regulation did not define in a sufficiently precise manner the minimum requirements which the variants had to meet and that this failure to comply with the provisions of Article 50 of the Code des Marches Publics necessarily affected the content of the tenders as it did not allow candidates to identify the expectations of the contracting authority; However, the applicant company can not usefully claim that the provisions of Article 50 of the Code des Marches Publics have been infringed since, in view of the scope of those provisions and the stage of the procedure to which it refers the breach alleged, it follows from what has been said in paragraph 5 that, on the assumption that it has been established, he is not likely to have injured her or to risk injury to her, even indirectly, by Rival company ;
13. Considering, thirdly, that under Article 53 of the Public Procurement Code: "I. In awarding the contract to the candidate who submitted the most economically advantageous tender, the contracting authority shall: 1 °) Either on a plurality of non-discriminatory criteria and related to the object of the market, in particular the quality, the price, the technical value, the esthetic and functional character, the performances in the matter of protection of the environment, the performances in terms of professional integration of public in difficulty, the overall cost of use, profitability, innovativeness, after-sales service and technical assistance, delivery date, delivery time or execution. Other criteria may be taken into account if they are justified by the subject of the contract (...) / II. For contracts awarded under a formal procedure other than the competition and where more than one criterion is specified, the contracting authority shall specify their weighting (...) / The criteria and their weighting or ranking are indicated in the public notice of invitation to the competition or in the documents of the consultation (...) "; whereas those provisions require the contracting authority to inform the candidates of the criteria for the selection of tenders and their weighting or ranking; if the contracting authority decides, in order to implement these selection criteria for tenders, to make use of equally weighted or hierarchical sub-criteria, it must inform the candidates of the weighting or prioritization of these sub-criteria. whereas, in view of their nature and the importance of this weighting or ranking, they are likely to have an influence on the submission of tenders by the candidates and on their selection and must, therefore, themselves be considered as selection criteria;
14. Considering that it follows from the investigation, in particular from Article 6 of the consultation rules relating to the award criteria, that the contracting authority had indicated, for each of these criteria, the factors that would be taken into account. ; even assuming that these indications should be regarded as criteria-like sub-criteria, it does not follow from the investigation that the contracting authority would have given itself a weighting or a ranking of those sub-criteria which would have had to be brought to the attention of the candidates;
15. Considering, fourthly, that the letter of 16 July 2014 sent by the Loire-Atlantique department to the Léon Grosse company, agent of the grouping to which the applicant company belonged, to notify it of the rejection of its tender, specified the ranking of the latter, the marks awarded to him, as well as the name of the grantee and the marks obtained by him; It follows that the plea alleging breach of Article 80 of the Code des Marches Publics can in any event not be dismissed.
16. Considering, in the fifth place, that if Alho Systembau maintains that the Eiffage Construction Pays de la Loire group's tender is abnormally low, it does not support that means by which it can be assessed in detail. well-founded;
17. Considering, sixthly, that, contrary to what the applicant company maintains, the absence of certain members of the selection board during the deliberations is not sufficient, on its own, to vitiate the opinion of the latter from that point on. that it is neither established nor even alleged that the quorum of half of the members provided for in Article 25 of the Code des Marches Publics was not reached; that it is also not established that the Jury would not have, after its deliberations, delivered a reasoned opinion on the performance of the candidates
18. Considering, seventh, that it follows from Article 46 of the Code des Marches Publics that the candidate to whom the contract is to be awarded must produce a number of documents certifying, inter alia, that he is up-to-date with his fiscal and social obligations and, on the other hand, that if he fails to communicate these documents to the contracting authority, his tender must be rejected, the candidate whose tender was filed immediately after his being then asked to produce the necessary certificates and attestations before the contract is awarded to him; that it follows, in any event, the instruction that, contrary to what the applicant company argues, the corresponding documents were transmitted to the department by email July 16, 2014;
19. Considering, finally, that if the applicant company maintains that the department would not have verified that the signatory of the contract of engagement of the awarded group was authorized to do so, it does not establish or even allege that such would not be the case;
20. Whereas it follows from all the foregoing that the application of Alho Systembau must be rejected;
The claims seeking the application of the provisions of Article L. 761-1 of the Code of Administrative Justice:
21. Considering that these provisions prevent the sums requested by the company Alho Systembau from being borne by the Loire-Atlantique department and the Eiffage construction Pays de la Loire company and others who are not the losing parties in this proceeding; whereas, on the other hand, in the circumstances of this case, Alho Systembau should be ordered to pay, on the basis of the same provisions, the sum of EUR 4 500 to be paid to the Department of Loire-Atlantique and, on the other hand, the sum of 500 euros to be paid to each company Eiffage construction Pays de la Loire, In Situ, SAS BH, Serba, Albdo, Synergy Wood, ITAC, Process Kitchens, Zephir Landscapes and Linéa architects, under the procedure before the judge of the administrative court of Nantes and the Council of State;
Article 1: The order of 19 August 2014 of the judge of the summary of the administrative court of Nantes is canceled.
Article 2: The request made by the society Alho Systembau before the judge of the summary of the administrative court of Nantes is rejected.
Article 3: The company Alho Systembau will pay the sum of 4,500 euros to the department of Loire-Atlantique and the sum of 500 euros to each company Eiffage construction Pays de la Loire, In Situ, SAS BH, Serba, Albdo, Synergie Bois , ITAC, Process Kitchens, Zephir Landscapes and Linéa architects under Article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the Department of Loire-Atlantique, the company Alho Systembau, the company Eiffage Construction Pays de la Loire, the first applicant called No. 384222, and the company Urbaterra.
The other applicants will be informed of the present decision by the SCP Lyon-Caen Thiriez, lawyer at the Council of State and the Court of Cassation, who represents them before the Council of State.