An association under the 1901 law can not exercise surveillance activities
Rule n ° 1: an offer which does not comply with the regulations in force must be qualified as an unacceptable offer
This case is in line with the case law of the Conseil d'Etat which considers that a public purchaser can not retain in the context of a competitive procedure a service provider who submits an application or an offer that does not does not comply with the legislation in force just as it can not award him the contract (EC November 30, 2011, Minister of Defense and Veterans Affairs, No. 353121- CE December 11, 2013 Antillean Security Company req.n ° 372214 ).
Rule n ° 2: An association law 1901 can not exert a activity of surveillance
Article L 611-1 of the Internal Security Code, all human surveillance activities are subject to Title VI of the Internal Security Code. And Article L 612-1 of the Internal Security Code provides that only natural or legal persons registered in the Trade and Companies Register are authorized to perform the surveillance services referred to in Article L 611-1 of the French Code of Internal Security. internal security.
It follows that the successful tenderer of a public contract involving supervisory activities can not be an association under the 1901 law insofar as, by definition, an association is not registered in the register of commerce and companies. In his report on the draft law for internal security, the rapporteur COURTOIS has already had the opportunity to recall that "all the surveillance activities" can not be carried out in associative form.
In this case, the decision of the Council of State is very surprising because for very obscure reasons (probably because of the political consequences that could have this judgment), it does not hesitate to distort the specifications that included however, alongside social mediation activities, surveillance services throughout the municipality.
The advertisement thus referred to the CPV code 79710000 in other words to security activities.
The CCTP required the contract holder to comply with the provisions of the National Collective Agreement for Prevention and Security Enterprises and the benefits included security activities: the licensee must use "all means in its possession" to "prevent the emergence disturbances on the public roads ", to intervene in pairs to disperse the groupings in feet of buildings and in the halls of buildings (it was thus indeed a surveillance of the disorders), to ensure a live watch of the degradations on buildings ... etc ... ..
The Conseil d'Etat therefore reverts to the pre-contractual Judge's solution which had drawn the logical consequence that if the public purchaser had been kind enough to respect the equality between the candidates, the tender of the association declared to have been awarded should have be declared unacceptable under Title VI of the Internal Security Code applicable to the market and consequently be rejected. But this has not been the case ... ..
Rule 3: Assessment of Negotiation Procedures in Negotiated Procedure
Under a negotiated procurement procedure, the contracting authority is required to enter into negotiations with the selected candidates (EC 11 August 2009, Sté Val'Horizon, application number 325465). The absence of negotiation makes the procedure irregular. In its judgment dated August 11, 2009, Sté Val'Horizon, the Council of State specifies that the negotiated procedure can be reduced to a simple reference to the specifications of the initial procedure and a simple request to candidates to file a better tariff offer, but, as the Conseil d'Etat states in this case, it is only then to negotiate on all aspects of the offer and not only the financial aspects.
In this case, the Council of State departs worryingly from this solution which had the merit of being clear.
In fact, following the declaration of unsuccessful proceedings, the City of Arcueil indicated that it intended to continue the procedure in the form of a negotiated market without publicity or competitive bidding pursuant to Article 35-I-1. of the Code des Marches Publics. She then asked the candidate to submit a new offer while stating that a negotiation would be subsequently initiated ... .or, no negotiation finally took place. Here again, the decision of the Council of State is very surprising since it considers that the simple request to submit a new offer in the context of a negotiated procedure may be worthwhile negating the very clear commitment of the city to negotiate ... .. once again the Council of State denatures the pieces of the file since it believes that negotiations took place when this was not the case ... ..not important insurance negotiation announced by the City ...
Rule 4: Respect for equal treatment between candidates directly subsidized by the contracting authority ... .and others!
When an association law 1901 candidate for a public contract receives subsidies directly the share of the contracting authority which launches the market, the logic which inspires the respect of the equality between the candidates would like that the latter asks the association law 1901 of on the one hand to justify its tariffs and on the other hand to verify that it has not benefited from a subsidy which is attributed to it as part of its public service mission supporting accounting documents.
In an injunction dated October 4, 2007, Regional Federation of Public Works of Limousin, No. 0500896, the Judge of pre-contractual summary of the Administrative Court of Limoges recalled that the offer of a candidate "can not be retained" if the contracting authority has been able to verify that the proposed price does not result from benefits or resources received by the contracting authority. This solution was subsequently confirmed by the same court and the Bordeaux Administrative Court of Appeal in a judgment of 1 March 2012, CH Bigore, 10BX01569.
In this case, the documents in the file indicated that the City of Arceuil awarded since 2010 to the association OPTIMA a subsidy of more than 370,000 € (in all illegality because without respecting any formalism) to ensure the benefits covered by the contract contentious. Since 2010, the association has been performing the benefits covered by the contract thanks to the subsidies paid by the City of Arceuil. However, the Council of State considers, according to the terse formula that goes well when it suits him, that it does not follow from the investigation that these financial aids would be an advantage at the stage of drawing up offers .... (sic) In other words, this judgment sign the end of the break of equality between the candidates subsidized by the contracting authority and the other economic operators ....
Board of state
N ° 386862
ECLI: FR: CESSR: 2015: 386862.20150327
Unpublished at Lebon collection
7th / 2nd SSR
Mr Frédéric Dieu, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP BARTHELEMY, MATUCHANSKY, VEXLIARD, POUPOT; SCP GARREAU, BAUER
VIOLAS, FESCHOTTE-DESBOIS; SCP LYON-CAEN, THIRIEZ, lawyers
Reading of Friday, March 27, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
Groupe Progard France has asked the judge for summary proceedings of the Melun Administrative Court, on the basis of Article L. 551-1 of the Code of Administrative Justice, to cancel the procedure for awarding the public service contract for night mediation services on the territory of the commune of Arcueil.
By an order n ° 1410160 of December 17, 2014, the judge of the courts of the administrative court of Melun granted this request.
By a summary appeal and a supplementary memorandum, registered on 2 and 19 January 2015 at the litigation secretariat of the Conseil d'Etat, the Optima association asks the Conseil d'Etat to:
1 °) to cancel this order;
2 °) ruling in summary proceedings, to reject the request made by Groupe Progard France before the Administrative Court of Melun;
3 °) to charge the company Groupe Progard France the payment of the sum of 7 000 euros under article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of public contracts;
- the code of internal security;
- the code of administrative justice;
After hearing in open session:
- the report of Mr. Frédéric Dieu, master of petitions,
- 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 association Optima, to the SCP Garreau, Bauer-Violas, Feschotte-Desbois, lawyer of the company Groupe Progard France , and at the SCP Lyon-Caen, Thiriez, lawyer of the commune of Arcueil;
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, unless it considers, in consideration of all the interests likely to be harmed and in particular of the public interest, that the negative consequences of these measures could outweigh their advantages. (...) " 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 under 1 ° of I of Article 35 of the Code des Marches Publics: "The contracting authorities may enter into negotiated contracts in the cases defined below." / I. - May be negotiated after prior advertisement and tendering: 1 ° Contracts and framework agreements for which, following competitive bidding or dialogue, only irregular or unacceptable offers have been proposed which the contracting authority is obliged to reject (.. .) An offer is unacceptable if the conditions laid down for its implementation are in breach of the legislation in force, or if the budgetary appropriations allocated to the contract after assessing the need to be met do not allow the contracting authority to finance it. However, the contracting authority is exempted from carrying out a new advertising measure if it does not participate in the negotiating the candidate or candidates who, during the previous procedure, submitted tenders complying with the formal deadlines and formalities for the submission of tenders. "
3. Considering that it appears from the documents in the file submitted to the Judge of the Melun Administrative Court that the municipality of Arcueil launched, in accordance with the open tender procedure, a consultation for the purpose of awarding 'a contract for' night mediation 'services on its territory; that, by a letter of September 29, 2014, the two candidates who submitted an offer, the association Optima and the company Groupe Progard France, were informed by the municipality of Arcueil that the procedure had been declared unsuccessful on the grounds that their offers exceeded the appropriations allocated to the municipality's annual budget for market services and were therefore unacceptable and, pursuant to Article 35 (1) (1) of the Public Procurement Code, it had decided to launch a procedure negotiated on the basis of the same specifications with the two candidates who bid on the call for tenders; that at the end of this procedure, the offer of the association Optima was retained; that, by the order contested, the judge of the summary of the administrative court Melun has, on recourse of the company Groupe Progard France, canceled the procurement procedure in dispute on the grounds that the offer of the association Optima was unacceptable;
4. Considering that under Article 53 (III) of the Code des Marches Publics: "Inappropriate, irregular and unacceptable offers are eliminated (...)"; that under the terms of Article L. 611-1 1 of the Internal Security Code: "Are subject to the provisions of this title, when they are not exercised by a public administrative service, activities that consist in: (1) providing services for the purpose of human surveillance or surveillance by electronic security systems or the safekeeping of movable or immovable property and the safety of persons in such immovables; "; that under the terms of Article L. 612-1 of the same code: "Only the activities listed in 1 ° to 3 ° of the article L can be authorized to exercise professionally, for themselves or for others, 611-1 (...): 1 ° Natural or legal persons registered in the Trade and Companies Register (...) "; that under the terms of Article L. 612-6 said code: "No one can exercise individually an activity mentioned in Article L. 611-1, nor direct, manage or be the partner of a person legal person exercising this activity, if he does not hold an authorization issued in accordance with procedures defined by decree of the Conseil d'Etat. ";
5. Considering that, in order to judge the offer of the Optima association unacceptable, the judge of the Melun Administrative Court found that the night mediation activity entrusted to the holder of the contract at issue included, in that it included conflict prevention and "targeted technical watch", security of persons and property related to services for the purpose of the surveillance or guarding of movable or immovable property and the safety of persons in such buildings, within the meaning of the aforementioned provisions of Article L. 611-1 (1) of the Internal Security Code, and could therefore only be exercised by a natural or legal person registered in the Trade and Companies Register and benefiting from the an approval;
6. Considering that the documents in the file submitted to the judge hearing the application for interim measures, in particular Article 1 of the special technical clauses, show that the mediation services provided for the night mediation were for the purpose of ensuring, throughout the territory of the municipality of Arcueil, a presence intended, overall, to maintain and strengthen relations with and between inhabitants, to prevent and appease conflicts that may arise between them and to report to the competent authorities, in particular the police forces, the only ones responsible for ensuring public order and tranquility, the occurrence of disturbances to public order and malfunctions that may affect the buildings of certain lessors; that the services of night mediation object of the market were thus not intended to ensure the surveillance or guarding of movable property or buildings precisely identified nor to ensure the safety of persons in such buildings; that, consequently, by estimating that these benefits concerned the activities of surveillance or guarding set out in the 1 ° of the article L. 611-1 of the code of the internal security, the judge of the interim measures incorrectly qualified the facts;
7. Considering that it follows from the foregoing, without it being necessary to examine the other grounds of its appeal, that the Optima association is justified in seeking the annulment of the order under appeal;
8. 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 proceedings initiated by the company Groupe Progard France;
9. Considering, firstly, that the result of the investigation, and that as has been said, the night mediation services object of the disputed market can not be assimilated to services for the purpose of monitoring or the guarding of movable or immovable property as well as the security of the persons in these buildings within the meaning of 1 ° of Article L. 611-1 of the Internal Security Code; that, consequently, the company Progard Group France is not justified to support that the execution of the services object of the market could not be taken care of, in application of articles L. 612-1 and L. 612-6 of the same code, only by a natural or legal person registered in the trade and companies register and holder of an authorization and could not therefore be entrusted to an associative structure such as the successful tenderer;
10. Considering, secondly, that under Article 66 of the Code des Marches Publics: "I. - A letter of consultation is sent simultaneously to all the selected candidates.This consultation letter includes at least: 1 ° The documents of the consultation or, if they are not held by the contracting authority, the address of the service from which the documents of the consultation can be immediately obtained on request and the deadline for submitting this application, or the conditions access to these documents if they are made available directly by electronic means 2 ° The date and time limit for receipt of tenders, the address to which they are sent and the mention of the obligation to draft them in French, 3 ° The references of the public notice of competition published, 4 ° Where applicable, the deadline for requesting additional documents, 5 ° The list of documents to be provided with the fre. ";
11. Considering that it follows from the investigation that the letter of 29 September 2014 sent by the municipality of Arcueil to the two candidates invited to negotiate because of the unsuccessful nature of the initial open tender procedure explicitly stated that the consultation documents were unchanged; that, consequently, the fact that this letter was not accompanied by the documents mentioned in 1 °, 3 ° and 5 ° of Article 66 of the Code des Marches Publics does not constitute a breach of the obligations of advertising and competition; that if that letter did not indicate to the candidates the closing date and time for receipt of tenders, it does not follow from the investigation that the absence of that indication in that letter was capable of to harm Groupe Progard France, which was able, during the negotiations, to usefully submit a new offer;
12. Considering that the aforementioned provisions of Article 35 of the Code des Marches Publics do not preclude that after the offers have been declared unacceptable, the negotiated procedure commits itself on the basis of the same documents and that the power is the contracting authority merely asks the candidates to revise their prices downwards; whereas, in the context of a negotiated procedure, the contracting authority freely determines the modalities for the discussion of tenders but can not enter into negotiations with several of the candidates except in accordance with the principle of equal treatment; that it follows from the investigation that Groupe Progard France, which was able to file a new offer with a lower price than that of its initial offer, has been treated identically to the Optima association and that the fact that the negotiations would not have been very developed is indifferent; that the company is therefore unfounded to maintain that the negotiations took place under irregular conditions;
13. Considering, thirdly, that under Article 46 of the Code des Marches Publics: "I. - Subject to the provisions of Article 45 VI, the candidate to whom it is intended to award the contract also produces: 1 ° The documents provided for in Articles D. 8222-5 or D. 8222-7 and D. 8222-8 of the Labor Code, these documents must be produced every six months until the end of performance of the contract 2 ° Certificates and certificates issued by the competent administrations and bodies proving that it has satisfied its fiscal and social obligations (...) III - The contract can not be awarded to the candidate whose tender only if he produces within the prescribed period the certificates and attestations provided for in Articles I and II.If he can not produce the documents within the prescribed period, his tender shall be rejected and the candidate eliminated. the offer was filed immediately after his is solicited to produce the necessary certificates and attestations before the contract is awarded. (...) ";
14. Considering that it follows from these provisions that the candidate to whom the contract is to be awarded must produce documents certifying, in particular, that he is up to date with his fiscal and social obligations before the signing of the contract; failing this, its tender must be rejected, the candidate whose bid was filed immediately after his own being able to be awarded the contract; that if the applicant company can usefully raise such a means, it follows, in this case, the instruction that the association Optima has provided all these documents to the town of Arcueil; Consequently, the plea alleging breach of the provisions of Article 46 of the Code des Marches Publics can only be dismissed.
15. Considering, fourthly, that the fact that the Optima association received subsidies from the municipality of Arcueil can not alone, in the absence of any factor likely to constitute a benefit conferred on the the association in the context of the preparation and examination of its tender during this procedure and when it does not result from the investigation, and is not alleged by the Groupe Progard France, that this offer would have been abnormally low, characterize a failure by the municipality of Arcueil to respect the equal treatment of the candidates;
16. Considering, finally, that under Article 10 of the Code des Marches Publics: "In order to encourage the widest competition, and unless the object of the contract does not allow the identification of distinct services, the power to contracting authority awards the contract in separate lots (...) "; as stated in point 6, the purpose of the contract is to ensure the presence, at night, in the territory of the municipality, of a team of animators whose tasks are the prevention or the settlement of difficulties by the dialogue and mediation; that such a market does not permit the identification of distinct services, according to the places or the difficulties to be prevented or regulated; that the commune of Arcueil can thus be regarded as having failed in its obligations of competition by resorting to a global market;
17. Considering that follows from all the foregoing, and without it being necessary to consider the defense of the municipality of Arcueil and the association Optima drawn from the irregularity of the offer of the Groupe Progard France, that the request of the latter can only be rejected;
18. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude an amount being charged to the Optima association which is not, in the present case, the losing party; whereas, on the other hand, under the same provisions, Groupe Progard France should be charged the sum of € 4,500 to be paid to the Optima association for costs incurred by it and not included in the costs, both before the Administrative Court of Melun and before the Council of State and the sum of 1 500 euros to be paid to the municipality of Arcueil;
Article 1: The order of the judge of summary of the administrative court of Melun of December 17, 2014 is canceled.
Article 2: The request made by Groupe Progard France before the administrative court of Melun is rejected.
Article 3: The company Groupe Progard France will pay a sum of 4 500 euros to the association Optima and a sum of 1 500 euros to the municipality of Arcueil in application of the provisions of Article L. 761-1 code of justice administrative.
Article 4: The conclusions presented by Groupe Progard France pursuant to the provisions of Article L. 761-1 of the Administrative Justice Code are rejected.
Article 5: This decision will be notified to the Optima association, Groupe Progard France and the municipality of Arcueil.