The contracting authority may use the results of technical tests as a criterion for judging the technical value of tenders.
EC June 26, 2015, AP-HP, req.no. 389124
The contracting authority may use as a criterion for judging the technical merit of the tenders, the results of the technical tests carried out under its control by the candidates.
Rule n ° 1:
The contracting authority may use as a criterion for judging the technical merit of the tenders, the results of the technical tests carried out under its control by the candidates. In the present case, the contracting authority had required candidates to perform, as part of their tenders and under its supervision, a trial of the services which are the subject of the contract in order to allow the evaluation of the technical quality. of their offer. The Conseil d'Etat considers that no provision of the Code des Marches Publics or any principle relating to public procurement prohibits this practice.
Rule n ° 2:
In order to respect the equality of candidates, these tests must be carried out under the control of the contracting authority. This is a common sense rule that is identical to the one applied when visiting places where the presence of a representative of the contracting authority is required to ensure that the same information is delivered in a timely manner. identical to all candidates (and even more so when a candidate is outgoing).
Rule n ° 3:
In order to ensure the confidentiality of tenders, any tests enabling the technical quality of tenders to be assessed must be conducted separately for each candidate without them being able to know the content of the competitors' offers. In reality, there is nothing to prevent the tests from being carried out simultaneously if the candidates do not have access to the test results of the other candidates. Nothing prevents the contracting authority from ensuring the anonymity of the results of the tests to respect both the confidentiality of the offers and the equality of the candidates.
Contracting authority side: Attention: In the context of a formalized procedure, except in the case of a negotiated procedure, the technical tests carried out can not be negotiated and must be an opportunity for the candidates to modify the content of their offer. in ignorance of the principle of the inviolability of offers.
Board of state
0202N ° 389124
ECLI: FR: CESSR: 2015: 389124.20150626
Mentioned in the tables of Lebon collection
7th / 2nd SSR
Stéphane Bouchard, rapporteur
Mr Bertrand Dacosta, public rapporteur
SCP DIDIER, PINET; SCP ORTSCHEIDT, lawyer (s)
Reading of the Friday, June 26, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The Am'Tech Medical company has asked the judge of the Paris Administrative Court for the annulment, on the basis of Article L. 551-1 of the Code of Administrative Justice, of the procedure for the award of prizes n ° 1 , 2 and 3 of a public contract launched by the Assistance Publique-Hôpitaux de Paris (AP-HP) for external quality control services of imaging and radiotherapy equipment.
By an order n ° 1503139/3/5 of March 16, 2015, the administrative court of Paris granted this request.
By a summary appeal, an additional memorial and a reply, registered on 31 March, 15 April and 5 June 2015 at the litigation secretariat of the Conseil d'Etat, the AP-HP asks the Conseil d'Etat:
1 °) to cancel this order;
2 °) to charge the company Am'Tech Medical the payment of the sum of 3,000 euros on the basis of the provisions of Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of public contracts;
- the code of public health;
- the code of administrative justice;
After hearing in open session:
- the report of Mr. Stéphane Bouchard, master of requests in extraordinary service,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Didier, Pinet, lawyer of Assistance Publique-Hospitals of Paris, and to the SCP Ortscheidt, lawyer of the Am'Tech Medical company;
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. / The judge is seized before the conclusion of the contract. " that under the terms of Article L. 551-2 of this Code: "I. - The judge can order the author of the breach to comply with his obligations and suspend the execution of any decision that relates to the the contract, unless it considers that, in the light of all the interests that may be adversely affected, including the public interest, the negative consequences of such measures may outweigh their benefits. It may, moreover, annul the decisions relating to the awarding of the contract and delete clauses or requirements intended to appear in the contract which do not comply with those obligations. (...) "; 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 of the Court of Administrative Court of Paris that the Assistance Publique-Hôpitaux de Paris (AP-HP) launched in August 2014 an open tendering procedure in the award of a public service contract for the provision of external quality control services for imaging and radiotherapy equipment; whereas the contract specifications provided that, for lots 1 to 3, tenders were selected on the basis of a criterion relating to the quality of the service, weighted to 60 %, and a price criterion weighted at 40 %; that according to this same specification, the criterion relating to the quality of the services was evaluated on the basis of answers provided by the candidates in a document entitled "technical response framework" attached to their offer and from a component of their offer consisting of the completion of an external quality control test on AP-HP equipment and the analysis report drawn up by the candidates after completion of this test; that the company Am'Tech Medical, whose offers for batches 1 to 3 were rejected, has applied to the judge of the Paris Administrative Court for an annulment of the award procedure of these three lots; that, by an order of 16 March 2015, the judge of interim relief granted the request of the company;
3. Whereas, in order to annul the contested proceedings, the President of the Court of First Instance held that the obligation imposed on the candidates by the contracting authority to perform, in the framework of the submission of their tender, and under the control of the contracting authority, a test of the services subject to the contract, in order to allow the evaluation of the technical quality of their offer, was not authorized by any provision of the public procurement code relating to open tenders; that by judging that the AP-HP had thus failed in its obligations of publicity and of putting in competition, without seeking if the obligation which it had envisaged was prohibited by a provision of the code of the public markets or the principles of the public order, the judge hearing the application for interim relief made an error of law; that, consequently, and without it being necessary to examine the other grounds of the appeal, the AP-HP is justified to ask for the annulment of the contested order
4. Considering that it is necessary, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interim proceedings initiated by the company Am'Tech Medical;
5. Considering, first, that Article 49 of the Code des Marches Publics provides: "the contracting authority may require that tenders be accompanied by samples, models or prototypes relating to the subject of the contract" and that According to Article 59 (I) of the Code des Marches Publics: "There can not be negotiations with candidates. It is only possible to ask candidates to clarify or add to the content of their offer "; that neither the provisions of Article 49, nor any other provision or principle prohibited the AP-HP to require candidates to perform tests as part of the presentation of their offer; that it does not result from the investigation and that it is not alleged by the applicant company that the tests to which the candidates were subjected would have given rise to a negotiation with the contracting authority and to a modification of the offers them, in disregard of the provisions of I of Article 59 of the Code des Marches Publics;
6. Considering, secondly, that it does not follow from the investigation that the confidentiality of the tenders submitted by the various candidates was violated by the organization of the tests, which took place separately for each of the candidates without a candidate can not know the content of the offer of its competitors;
7. Considering, thirdly, that under Article R. 5212-29 of the Public Health Code: "The external quality control of medical devices is carried out by bodies approved for that purpose by decision of the Director General of the National Agency for the Safety of Medicines and Health Products (...) Accreditation is granted for a period of five years renewable, according to the guarantees of independence and competence presented, the experience acquired in the field in question and the means available to the organization for carrying out the tasks for which it is accredited "; the authorization to be held by the candidates for the contract in question by virtue of the abovementioned provisions, can not preclude the contracting authority from submitting them, for the purpose of selecting the tenders, to a test having as its object to appreciate the quality of their performance;
8. Fourthly, it follows from the investigation that the notification mail of the rejection of its tender to the applicant company indicates, for the evaluation of the tests, the number of points awarded, on the one hand to the test itself, on the other hand, to the answers to the questionnaire given to the candidate on the occasion of this test; that the contracting authority has thus limited itself to detailing the method of notation adopted for the evaluation of the tests; that the applicant company can not claim that this mail would reveal a weighting of sub-criteria relating to the tests and the questionnaires which would not have been brought to its knowledge in the documents of the consultation;
9. Considering, fifthly, that it does not follow from the investigation that the applicant company would not have benefited from the five-day period provided for in the documents of the consultation for the drafting of the test analysis reports and that the principle of equal treatment of candidates was thus disregarded;
10. Considering that it follows from all the foregoing that the application made by the company Am'Tech Medical to the judge of the summary of the Administrative Court of Paris can only be rejected;
11. Considering that the provisions of Article L. 761-1 code administrative justice prevent the payment of a sum to be charged to the AP-HP who is not, in the this proceeding, the losing party; that, on the other hand, under the same provisions, to charge the company Am'Tech Medical the payment to the AP-HP of the sum of 4,500 euros for expenses incurred by this company. last and not included in the costs for the proceedings before the Conseil d'Etat and the Paris Administrative Court;
Article 1: The order of 16 March 2015 of the Judge of the Court of First Instance of the Administrative Court of Paris is annulled.
Article 2: The request made by Am'Tech Medical before the judge of the Paris Administrative Court and its conclusions presented under Article L. 761-1 code administrative justice are rejected.
Article 3: The company Am'Tech Medical will pay a sum of 4,500 euros to the Assistance Publique-Hôpitaux de Paris under article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the Assistance Publique-Hôpitaux de Paris (AP-HP) and the company Am'Tech Medical.
Copies will be sent for information to Apave Parisienne, Cibio Medical and Medi-Qual.
Summary: 1) Contracting authority imposing a specific obligation on candidates to submit their tender. In order to assess its compliance with the advertising and competition rules, it is necessary to seek, not whether this specific obligation is expressly authorized by a provision of the Code des Marches Publics, but whether it is prohibited by a provision of the same Code or 2) In the present case, the contracting authority required the candidates to perform, as part of the presentation of their tender, and under its control, a test of the services rendered by the applicant. subject of the contract, in order to allow the evaluation of the technical quality of their offer. Neither the provisions of Article 49 of the Code des Marches Publics nor any other provision or principle prohibited such a requirement, since the tests carried out did not give rise to negotiations with the contracting authority or to a modification. their offer in disregard of the provisions of I of Article 59 of the same Code.
1) Contracting authority imposing a specific obligation on candidates for the submission of their tender. In order to assess its compliance with the advertising and competition rules, it is necessary to seek, not whether this specific obligation is expressly authorized by a provision of the Code des Marches Publics, but whether it is prohibited by a provision of the same Code or 2) In the present case, the contracting authority required the candidates to perform, as part of the presentation of their tender, and under its control, a test of the services rendered by the applicant. subject of the contract, in order to allow the evaluation of the technical quality of their offer. Neither the provisions of Article 49 of the Code des Marches Publics nor any other provision or principle prohibited such a requirement, since the tests carried out did not give rise to negotiations with the contracting authority or to a modification. their offer in disregard of the provisions of I of Article 59 of the same Code.