Renforcement de l'obligation d'information des candidats sur les conditions de sélection des candidatures

Reinforcement of the obligation of information of the candidates on the conditions of selection of the candidatures

by gmorales on 2 May 2015 | Category: Pre-contractual & Contractual referral
Renforcement de l'obligation d'information des candidats sur les conditions de sélection des candidatures Renforcement de l'obligation d'information des candidats sur les conditions de sélection des candidatures

Renforcement de l'obligation d'information des candidats sur les conditions de sélection des candidatures

CE 10 April 2015, Chamber of Commerce and Local Industry of Ajaccio and Corse-du-Sud, Req. No. 387128

Restricted procedure: reinforcement of the obligation of information of the candidates on the conditions of selection of the candidatures.
The contracting authority is under an obligation to inform the candidates of the conditions for implementing the selection criteria for applications, if these conditions, if they had been initially known, would have been likely to encourage other candidates or to retain other candidates.

Rule No 1: Awarding of the awarding authority / contracting entity

A contracting authority must be considered to be acting as a contracting entity when it awards a contract for the acquisition of equipment necessary for the operation of the network to which it belongs.

In the present case, provided that car parks for vehicles situated in the area of an airport, which are open both to the personnel of the airlines and to their passengers, constitute equipment necessary for the proper functioning of the the airport to which they are integrated, the supply and installation of equipment for these car parks must be regarded as an activity of exploitation of a geographical area making it possible to organize the airport and to make them available to carriers, and therefore as an activity of a procuring entity.

Rule n ° 2: Information of the candidates on the conditions of notation of the candidatures:

When the contracting authority decides to limit the number of candidates who are eligible to submit an offer, it is the responsibility of the contracting authority to ensure that candidates are informed of the selection criteria for these applications as soon as the contract award procedure is initiated, in the public call for tender or the specifications held at the disposal of the candidates.

This appropriate information assumes:

  1. - That the contracting authority indicates to the candidates the documents or information on the basis of which it intends to make the selection of the candidates;
  2. - If the contracting authority intends to set minimum levels of capacity, that these are made known to the candidates;
  3. - That the contracting authority inform the candidates about the conditions for implementing the selection criteria for the applications (ie their weighting or ranking), if it is shown that these conditions, if they had were initially known, would have been likely to encourage other applications or retain other candidates.

In the case in point, the Conseil d'Etat considers that it does not result from the instruction that the indication of the weighting of the selection criteria of the candidatures, balanced of the four criteria relating to the economic and financial capacity, the references , the means of personnel and the technical means, if it had been known during the preparation of the candidatures, would have been likely to influence this preparation.

Observations / tips:

In general, knowledge of the conditions for implementing the criteria for the rating of candidates is very generally likely to influence this preparation, since it could lead candidates to respond within the framework of momentary groupings of companies rather than 'as a candidate alone.

Board of state
N ° 387128
ECLI: FR: CESSR: 2015: 387128.20150410
Mentioned in the tables of Lebon collection
7th / 2nd SSR

Mr Frédéric Dieu, rapporteur
Mr Bertrand Dacosta, public rapporteur
SCP BORE, BRUNETON SALVAGE; SCP GADIOU, CHEVALLIER, lawyers

Reading of Friday, April 10, 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Full Text

Considering the following procedure:

The company Automatismes Corses asked the judge of the courts of the administrative court of Bastia, on the basis of Article L. 551-1 code administrative justice, to cancel the procurement procedure for the purpose of replacing the equipment and the management system of the car parks of the Ajaccio airport's vehicles and their maintenance. By an order n ° 1401089 of December 30, 2014, the judge of summary of the administrative court of Bastia canceled this procedure.

By a summary appeal, a supplementary memorial and two reply briefs, registered on 14 and 29 January and on 2 and 12 March 2015 in the litigation secretariat of the Conseil d'Etat, the Chamber of Commerce and Industry of Ajaccio and of Corse-du-Sud asks the Council of State:

1 °) to cancel this order;

2 °) ruling in summary proceedings, to reject the application of the company Automatismes Corses;

3 °) to charge the company Automatismes Corses the payment of the sum of 3 000 euros under Article L. 761-1 code administrative justice.

Considering the other parts of the file;

Viewed:
- the code of public contracts;
- the code of administrative justice.

After hearing in open session:

- the report of Mr. Frédéric Dieu, master of petitions,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Boré, Salve de Bruneton, lawyer of the chamber of commerce and territorial industry of Ajaccio and Corse-du-Sud, and the SCP Gadiou, Chevallier , lawyer of the company Automatismes Corses;

1. Considering, on the one hand, that under Article L. 551-5 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate he delegates, may be seized in case of failure advertising and bidding requirements to which contracting entities 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 (...). / The judge is seized before the conclusion of the contract "; that according to the article L. 551-6: "The judge can order the author of the failure to comply with his obligations by setting a time limit for this purpose.It can order him to suspend the execution of any decision relating to the awarding of the contract (...) It may, moreover, pronounce a temporary provisional penalty upon expiry of the time limits (...) "; that according to the article L. 551-7: "The judge can however, considering all the interests likely to be harmed and in particular of the public interest, to dismiss the measures stated in the first paragraph of the Article L. 551-6 when their negative consequences may outweigh their benefits. ";

2. Considering, on the other hand, that under Article 2 of the Code des Marches Publics: "The contracting authorities subject to this Code are: / 1 ° The State and its public institutions other than those having a character industrial and commercial (...). "; that pursuant to Article 134 (1) of the same Code, defining the scope of its second part: "The provisions of this Part apply to contracts and framework agreements awarded by contracting entities. contracting authorities as defined in Article 2 when they carry on one of the activities of network operators listed in Article 135 ", which mentions in particular, in 4 °," the activities relating to the operation of a geographical area making it possible to organize and make available carriers, airports, seaports, river ports, or other transport terminals. "; Article 144 (I) states that contracting entities shall award their contracts and framework agreements by freely choosing between several formalized procedures, including the negotiated procedure with prior call for competition and the open or restricted invitation to tender provided for respectively at 1 ° and 2 °;

3. Considering that it appears from the documents in the file submitted to the judge pre-contractual summary of the administrative court of Bastia that, by a notice of public call published on 10 October 2014 in the Official Journal of the European Union and 11 October 2014 in the Official Bulletin announcements of public markets, the Chamber of Commerce and Industry of Ajaccio and Corse-du-Sud, to which the territorial collectivity of Corsica conceded in 2005 the operation of the airport of Ajaccio, on the basis of the provisions of Article 144 (1) and Articles 165 and 166 of the Public Contracts Code applicable to contracts awarded by contracting entities, has instituted a procedure for the award of award of a contract for the replacement and maintenance of parking lot equipment and management systems for airport vehicles; that the company Automatismes Corses has submitted its application; that, however, by a letter of December 2, 2014, she was informed by the chamber of commerce and industry that her application, ranked fifth, had not been retained, only three candidates having been authorized by the opinion of public invitation to tender to submit an offer; that, by the order contested, the Judge pre-contractual summary of the administrative court of Bastia, seized by the company Automatismes Corses, canceled the procedure of issue litigious;

4. Considering that, in order to hold that the Chamber of Commerce and Local Industry of Ajaccio and Corse-du-Sud could not, as part of the procurement procedure at issue, be regarded as a contracting entity, the judge of the the pre-contractual summary of the Bastia administrative court held that the object of the contract was more a service to airport users than a service related to air transport within the meaning of Article 135 of the Code of public markets ;

5. Considering that the Chamber of Commerce and Industry, an administrative public institution having the status of contracting authority under 1 ° of Article 2 of the Code des Marches Publics, has, by virtue of Article 134 of the same Code , the status of contracting entity when it awards a contract in relation to the activity of organizing and making available to the air carriers of Ajaccio airport which has been granted to it; parking lots for vehicles in the area of an airport, which are open both to airline personnel and to their passengers, are necessary equipment for the proper functioning of the airport to which they are integrated ; that the supply and installation of equipment for these car parks should be regarded as an activity of exploitation of a geographical area making it possible to organize the airport and to make them available to the carriers, within the meaning of the 4 ° of Article 135 of the Code des Marches Publics, and consequently as an activity exercised by a contracting entity; that, therefore, the Judge pre-contractual summary of the administrative court of Bastia incorrectly qualified the facts by estimating that the litigious market could not be passed by the chamber of commerce as adjudicating entity;

6. Considering that follows from the foregoing that the pre-contractual judge has erred in law by canceling the procedure contentious issue on the basis of the provisions of Articles L. 551-1 to 4 of the code of administrative justice relating to , in particular, to public contracts awarded by contracting authorities and by not exercising its office on the basis of Articles L. 551-5 to 7 of the same Code, which are applicable only to the award of public contracts by the contracting entities and which does not allow him to cancel the procedure of awarding a contract, even for lack of knowledge of the provisions of Article 52 of the Code des Marches Publics; whereas, consequently, the order under appeal must be annulled;

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 Automatismes Corses;

8. Considering, in the first place, that as has just been said, the Chamber of Commerce and Local Industry of Ajaccio and Corse-du-Sud was legally able to initiate the awarding of the disputed contract as a that contracting entity; that in this quality, it could, without disregarding its obligations of advertising and putting in competition, resort to a negotiated procedure in application of the provisions of articles 144, 165 and 166 of the code of the public markets;

9. Considering, secondly, that if the company Automatismes Corses maintains that the minimum period of receipt of tenders of fifty-two days provided for by II of Article 57 of the Code des Marches Publics has not been respected, it as a result of the provisions of Article 165 (3) of the Code relating to contracts awarded by contracting entities in accordance with a negotiated procedure, applicable to the award procedure in question, that the minimum period for the receipt of tenders is twenty-two days; that it follows from the investigation that he has been respected in this case by the contracting entity, the deadline fixed by the notice of public call for competition having been thirty-three days;

10. Considering, thirdly, that, likewise, the company Automatismes Corses can usefully not avail itself of the ignorance of the provisions of I of Article 60 of the Public Procurement Code prohibiting the contracting authority from fixing a number of admitted candidates to submit an offer of less than five, such provisions being, by virtue of 2 ° of article 165 of the same code which does not provide for a minimum number, not applicable to the contracts awarded by contracting entities according to a negotiated procedure;

11. Fourthly, if the Automatismes Corses company submits that heading II.1.4. the public notice of competition relating to the information concerning the framework agreement has not been completed, it does not establish how the alleged failure of the public body to fulfill its obligations to advertise and implement would have harmed it or would have been liable to prejudice it, having regard to its scope and the stage of the procedure to which it relates;

12. Considering, fifthly, that under Article 52 (II) of the Public Procurement Code, applicable to contracts awarded by contracting entities pursuant to a procedure negotiated under Article 156 of the Code: "Where the contracting authority decides to limit the number of candidates who are eligible to submit an offer, it selects these candidates by applying to the candidates selected in accordance with I non-discriminatory and market-related selection criteria relating to their abilities. These criteria are mentioned in the public invitation to tender, or, in the case of a procedure exempted from the sending of such notice, in the regulation of the competition. consultation. " whereas, where the contracting authority decides to limit the number of candidates admitted to submit an offer, it is the responsibility of the contracting authority to ensure the appropriate information of the candidates on the criteria for the selection of these applications as from the start of the award procedure; in the public call for tender or the specifications held at the disposal of the candidates; that this appropriate information supposes that the contracting authority also indicates the documents or information on the basis of which it intends to make the selection of the candidatures; whereas, moreover, if the contracting authority intends to lay down minimum levels of capacity, these must also be made known to the candidates; that this appropriate information of the candidates does not imply however that the contracting authority indicates the conditions of implementation of the criteria of selection of the candidatures, except under the assumption that these conditions, if they had been initially known, would have been of nature to encourage other candidates or retain other candidates;

13. Considering that it follows from the investigation that, contrary to what the company Automatismes Corses asserts, the notice of public competition in this case indicated the criteria for the selection of candidatures as well as the documents in question. from which they would be applied; that the chamber of commerce was not required to indicate to the candidates the conditions for the implementation of these criteria, consisting of their weighting, since it does not follow from the instruction that the indication of this balanced weighting the four criteria relating to the economic and financial capacity, the references, the personnel and the technical means, if it had been known during the preparation of the candidatures, would have been likely to influence this preparation;

14. Considering, sixthly, that, contrary to the opinion of the company Automatismes Corses, the notice of public invitation to tender, stating that the group of economic operators awarded the contract should take the form of a solidarity grouping , did not fail to comply with the provisions of Article 51 of the Public Procurement Code, which are applicable to the award procedure in question pursuant to Article 142 of the same Code, authorizing the candidate for a contract to come in the form of a consortium jointly or severally liable, subject to compliance with the rules on competition, but limited to requiring the successful tenderer to form a joint and several group, as authorized by the provisions of the VII of Article 51;

15. Considering, in the seventh place, that the error which Automatismes Corses makes with regard to the rating of its turnover, assuming it to be established, is in any event not susceptible to that the awarding of a maximum score for this selection criteria would not have resulted in him being ranked among the three candidates eligible to submit an offer pursuant to the Public Notice of Appeal. competition;

16. Considering, finally, that the Chamber of Commerce did not violate its obligations of publicity and competition by analyzing the economic and financial capacity and the technical capacity of the candidates with regard, respectively, to the statements of turnover the last three financial years and the statement of the candidate's annual average manpower and the size of the management staff for each of the last three years, the provision of such information and documents in support of applications being provided for in the provisions of the decree of 28 August 2006 which is binding on the contracting authorities and contracting entities deciding to limit the number of candidates admitted to submit an offer;

17. Considering that it follows from all the foregoing that the application submitted by the company Automatismes Corses to the judge of the summary of the administrative court of Bastia can only be rejected;

18. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of a sum to be charged to the Chamber of Commerce and Industry of Ajaccio and of Corse-du-Sud which is not, in the present case, the losing party; on the other hand, under the same provisions, to charge the company Automatismes Corses the payment to the Chamber of Commerce of the sum of € 4,500 for costs incurred by the latter and not included in the costs of the proceedings before the Conseil d'Etat and the Tribunal administratif de Bastia;

DECIDE:
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Article 1: The order of 30 December 2014 of the judge of summary of the administrative court of Bastia is canceled.
Article 2: The request made by the company Automatismes Corses before the judge of the summary of the administrative court of Bastia and its conclusions presented under Article L. 761-1 code administrative justice are rejected.
Article 3: The company Automatismes Corses will pay a sum of 4,500 euros to the Chamber of Commerce and Industry of Ajaccio and Corse-du-Sud under article L. 761-1 code administrative justice .
Article 4: This decision will be notified to the Chamber of Commerce and Industry of Ajaccio and Corse-du-Sud and to the company Automatismes Corses