L'interdiction d'attribuer le contrat à une offre qui reste irrégulière au terme des négociations

Prohibition to award the contract to an offer which remains irregular at the end of the negotiations

by gmorales on 8 August 2015 | Category: Pre-contractual & Contractual referral
L'interdiction d'attribuer le contrat à une offre qui reste irrégulière au terme des négociations L'interdiction d'attribuer le contrat à une offre qui reste irrégulière au terme des négociations

L'interdiction d'attribuer le contrat à une offre qui reste irrégulière au terme des négociations

TA Toulon, Ord.18 june 2015, Sté Groupe Progard France, n ° 1501930
Prohibition to award the contract to an offer which remains irregular at the end of the negotiations

The opportunity to negotiate with candidates who have submitted an irregular offer

The Council of State, by its decision n ° 353121 of November 30, 2011, Ministry of Defense and Veterans Affairs, has already had the opportunity to recall that the candidates having submitted an irregular offer can be, with the free choice of the power contracting authority, admitted to take part in the negotiation phase during which the irregular nature of their tender will have to be corrected to be declared the awarding of the contract. It is this common-sense solution that is recalled by the pre-contractual summary judge of the Administrative Tribunal of Toulon in a pre-contractual injunction of 18 June 2005 concerning a surveillance and guarding market.

The obligation to reject an offer which remains irregular at the end of the negotiations

The contracting authority may not award the contract to a service provider whose offer remains irregular at the end of the negotiations, except to break the tie between the candidates and automatically prejudice the second applicant. And for good reason since the jurisprudence of the Council of State is constant to consider that an ousted candidate is automatically aggrieved by the "irregular" admission of an offer whatever its classification (CE 11 April 2012, LLOYD'S Union ODY 1218 NEWLINE London, Req. No. 354652).

In the present case, the documents exchanged during the proceedings demonstrated that, both in the negotiations and at the end of the negotiations, the successful tenderer had not submitted in support of his tender the supporting documents concerning the qualification and the training of the agents in charge of the services of security which were nevertheless required by the specifications. The pre-contractual judge pointed out that, although it was an appropriate procedure, his offer had therefore to be rejected except to break the tie between the candidates. In other words, the rule that has to be adopted in the matter of adapted procedure is: to negotiate with an irregular offer, yes, to declare it the winner of the contract, no!