Les nouvelles modalités de contrôle de l'absence d'allotissement et du recours à la procédure du dialogue compétitif

New methods of controlling the absence of allotments and the use of the competitive dialogue procedure

by gmorales on September 2nd, 2015 | Category: Pre-contractual & Contractual referral
Les nouvelles modalités de contrôle de l'absence d'allotissement et du recours à la procédure du dialogue compétitif Les nouvelles modalités de contrôle de l'absence d'allotissement et du recours à la procédure du dialogue compétitif

Les nouvelles modalités de contrôle de l'absence d'allotissement et du recours à la procédure du dialogue compétitif CE 26 June 2015, City of Paris, req.no. 389682
This decision is interesting for two reasons. First, it states that in the absence of an allotment, the judge hearing the application for interim measures must verify the analysis made by the contracting authority and the supporting documents provided by the latter. On the other hand, the Conseil d'Etat considers that the difficulties in defining the technical means to be used to meet the needs of the contracting authority may justify the use of the competitive dialogue procedure.

Rule n ° 1:

Obligation for the judge to control the analysis made by the contracting authority to decide not to allot the market and the supporting documents provided by the latter.
In this case, the City of Paris has decided not to allot the market on the grounds that the fact of entrusting the management of the kiosks and that of the activity of the kiosquiers to the same operator could dispense with having to arbitrate it - even the recurring conflicts between the manager of kiosks and kioskiers whose interests are often divergent. According to this analysis, there was a real risk of a multiplication of conflicts that made the execution of two contracts technically difficult and costly. The Conseil d'Etat considers that the City could, on the basis of this analysis, make the choice of a global market, given the difficulties that could arise from the realization, by two separate operators, benefits that are strongly interwoven and obey however, often with competing logic and this despite the fact that two separate contracts were previously implemented for the same benefits.

Rule n ° 2:

Article 36 of the Public Procurement Code states that the use of the competitive dialogue procedure is reserved for particularly complex public contracts. The administrative case law retains a relatively strict approach to the concept of complexity that may justify the use of the partnership contract under the competitive dialogue procedure.

In this respect, it was considered that the difficulties involved in setting up a national coverage system for the provident and health care of Chamber of Commerce and industry staff gradually replacing multiple contracts of protection. The local health of each chamber, in the context of a profound reform of the consular network, objectively made possible the use of competitive dialogue (EC 11 March 2013, Assemblies of the French Chambers of Commerce and Industry, n ° 364551). On the contrary, it was considered that the condition of technical complexity was not fulfilled for the project of the realization of the Cité du Surf and the extension of the Aquarium of the Musée de la Mer even though the Commune was trying to justify the use of the competitive dialogue procedure with regard to the exceptional dimensions of the structure to be built, which will have an area of more than 1300 m2 and will be realized in an underground space adjoining a road tunnel and an old bunker involving the installation of high-tech equipment as well as the maintenance of the public opening of the existing installations during the duration of the works (EC 30 July 2014, Commune of Biarritz, req.n ° 363007).

In its decision of 26 June 2015, Ville de Paris, the Council of State considers that waiting for candidates particularly innovative solutions both for the design of books and for the management of the activity of kiosks , which take into account both technological developments and objectives of multiple use of kiosks, respect for architectural constraints and the environment, optimal management of a network of kiosks and optimization of revenue, and that the definition of technical means capable of meeting such needs was complex and justifies the use of the competitive dialogue procedure.

What you must remember :

In order to legally secure the procedure for awarding a partnership contract under the competitive dialogue procedure, it is therefore recommended that the contracting authority provide a good rationale for the complex nature of the operation envisaged in its prior assessment report. This motivation must imperatively intervene before the launch of the operation.

Board of state
N ° 389682
ECLI: FR: CESSR: 2015: 389682.20150626
Mentioned in the tables of Lebon collection
7th / 2nd SSR

Mr Vincent Montrieux, rapporteur
Mr Bertrand Dacosta, public rapporteur
SCP FOUSSARD, FROGER; SCP MASSE-DESSEN, THOUVENIN, COUDRAY, lawyer (s)

Reading of the Friday, June 26, 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The companies Extérion Média France and Derichebourg SNG have asked the Judge of the Paris Administrative Court, seized on the basis of Article L. 551-1 of the Code of Administrative Justice, to cancel the procedure for awarding the public contract intended the design, supply, maintenance, maintenance and advertising of press kiosks and some kiosks for other purposes and the management of the activity of kiosks, launched by the city of Paris.

By an order n ° 1504843 / 7-4 of April 9th, 2015, the judge of the Paris Administrative Court has annulled the procedure of competitive dialogue initiated on January 20th and 21st, 2015 by the city of Paris.

By a summary appeal, a supplementary memorial and a reply, registered on 22 April, 7 May and 5 June 2015 at the litigation secretariat of the Conseil d'Etat, the City of Paris asks the Conseil d'Etat:

1 °) to cancel this order;
2 °) ruling in summary proceedings, to reject the requests of the companies Extérion Média France and Derichebourg SNG;
3 °) to charge the companies Extérion Média France and Derichebourg SNG the payment of the sum of 5,000 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. Vincent Montrieux, 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 Foussard, Froger, lawyer of the city of Paris, and to the SCP Masse-Dessen, Thouvenin, Coudray, lawyer of the company Extérion Média France and the company Derichebourg SNG;

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 the city of Paris appeals in cassation against the order of 9 April 2015 by which the judge of the summary of the administrative court of Paris canceled, at the request of the companies Extérion Média France and Derichebourg SNG, the procedure that it had launched for the purpose of awarding a public contract for the design, supply, maintenance, maintenance and advertising of press kiosks and some other use kiosks and the management of kiosk activity;

3. Considering that the documents in the file submitted to the judge hearing the application for interim relief show that, by a public notice of invitation published on 23 October 2012, the City of Paris launched a competitive dialogue procedure with a view to awarding of a global contract which was to replace two existing agreements having for their object, on the one hand, the provision, the maintenance and the advertising exploitation of the kiosks, and, on the other hand the management of the activity kiosks that, according to the provisions of the "functional preprogram" communicated to the candidates, were mainly requested to the future holder of the contract, in the first place, the renewal of at least 200 of the 404 current kiosks and the adaptation of the new furniture to the requirements of the city in terms of functionality, sustainable development and innovation, secondly, the management of the activity of the kiosks, the animation of the network of kiosks and the support to the activity of diffusion of the press; that the holder, also responsible for the renovation, maintenance and upkeep of the entire kiosk park and liable for an annual fee in an amount to be determined was authorized, in return, to exploit the advertising space on furniture;

4. Considering that, in order to annul the whole of the proceedings, the judge hearing the application for interim measures held that the City of Paris had infringed Article 10 of the Code des Marches Publics by passing a global contract, on the other hand, Article 36 of the Code by choosing a competitive dialogue procedure;

5. Considering, firstly, that under Article 10 of the Public Procurement Code: "In order to encourage the widest competition, and unless the purpose of the contract does not allow the identification of distinct services, the contracting authority awards the contract in separate lots (...). The contracting authority may, however, award a global contract, with or without the identification of separate services, if it considers that devolution in separate lots is likely, in the particular case, to restrict competition, or may render it technically impossible. difficult or financially expensive the execution of the services or that it is not able to ensure by itself the missions of organization, piloting or coordination "; that, having regard to a plea alleging irregularity in the use of a global contract, it is for the court to determine whether the analysis to which the contracting authority has proceeded and the justifications it provides are, having regard to the margin It is accepted that devolution in separate lots has one of the disadvantages mentioned in the aforementioned provisions, which is vitiated by erroneous assessments.

6. Considering that the judge in chambers pointed out that the city of Paris argued that the fact of entrusting the management of the kiosks and that of the activity of the kiosquiers to the same operator exempted it from having to arbitrate itself the conflicts recurring between the manager of kiosks and kiosks, whose interests are often divergent; that, however, he considered that these risks were inherent in the nature of the activity in question and that, for several decades, they had not put him at risk and concluded that they were not of such seriousness that it makes the performance of two separate contracts technically difficult; that by judging thus, then notably that, within the framework of the renewal that the city expected from the holder of the contract in the design and the management of the kiosks and the objectives of valorization of its domain that it was assigned, the implementation by two operators distinct from the logic of managing the works, the exploitation of advertising space and the sale of newspapers was, as was apparent from the analysis it had produced, likely to lead to a multiplication of conflicts and thus making the performance of two contracts technically difficult and costly, the judge hearing the application for interim relief made an error in the legal qualification;

7. Considering, secondly, that under Article 36 of the same Code: "The competitive dialogue procedure is a procedure in which the contracting authority conducts a dialogue with the candidates admitted to participate in order to define or to develop one or more solutions to meet its needs and on the basis of which the participants in the dialogue will be invited to submit an offer. / Recourse to the competitive dialogue procedure is possible when a public contract is considered as complex, ie when at least one of the following conditions is met: / 1 ° The contracting authority is not objectively not able to define alone and in advance the technical means that can meet his needs; / 2 ° The contracting authority is objectively unable to establish the legal or financial arrangement of a project. "

8. Considering that, in order to find that the city of Paris could not have recourse to the competitive dialogue procedure, the judge for interim relief pointed out that if the city were waiting for candidates, innovative proposals for the design and design of the kiosks as well as for the improvement of the working conditions of the kiosk operators, the contract holder would have to provide the other services under conditions comparable to those provided for by the contracts in progress; that it has deduced that, enjoying a secular experience in the field, the city does not face difficulties such that it would not be able to define alone and in advance the technical means to respond to its needs or establish the financial or legal arrangement of the project; that by judging thus, then, on the one hand, that the city of Paris intended that at the time of the passing of a new market, innovative solutions be proposed, as well for the design of the works as for the management of the activity of the kioskiers, which take into account at the same time technological evolutions and objectives of multiple use of the kiosks, respect of the architectural constraints and the environment, optimal management of a network of kiosks and optimization of public revenue, and, on the other hand, that it was clear from the evidence in the file submitted to it and from the arguments of the parties before it that the definition of technical means capable of meeting such needs was complex, meaning of the provisions cited in point 7, the judge hearing the application for interim relief tainted his order of an error of legal qualification;

9. Considering, therefore, without it being necessary to examine the other grounds of appeal, that the city of Paris is justified in seeking the annulment of the order under appeal;

10. Considering that it is appropriate, in the circumstances of the case, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interlocutory proceedings initiated by the Extérion Media France and Derichebourg SNG;

11. Considering, in the first place, as stated in paragraph 7 above, that the city of Paris was able, without any irregularity, to choose a global market, having regard to the difficulties which the realization would raise. by two distinct operators, services that are strongly interwoven and often obey competing logic; whereas the fact that two separate contracts were previously implemented is in any event irrelevant in this respect;

12. Considering, secondly, that as stated above in point 8, the multiple objectives assigned by the city to the prospective owner and the constraints imposed on him give the market a complexity which justifies, for the definition of means to meet the needs of the city, the use of competitive dialogue;

13. Considering, thirdly, that according to Article 1 (III) of the Public Procurement Code: "Public works contracts are contracts concluded with contractors, whose object is either the execution or the joint the design and execution of a building or civil engineering work or works meeting the needs specified by the contracting authority which exercises the contracting authority. (...) Public service contracts are the contracts concluded with service providers whose purpose is the provision of services. / (...) When a public contract covers both services and works, it is a works contract if its main purpose is to carry out works. A public contract for the acquisition of supplies and, as an accessory, the installation and installation of such supplies, is considered to be a supply contract "; that under Article 37 of the same Code: "A design-build contract is a works contract which allows the contracting authority to entrust a group of economic operators or, for infrastructure works only, to a single economic operator, a mission dealing both with the establishment of studies and the execution of works. (...) "; that according to Article 69 (I) of the same Code "I. - The design-realization contracts defined in Article 37 have been awarded by the contracting authorities subject to the provisions of the aforementioned Act of 12 July 1985 in accordance with the procedure laid down in restricted invitation to tender subject to the following special provisions (...) ";

14. Whereas, if the contract in question involves both works and services, it follows from the investigation that the construction of the works in question is not its main object and that the contract can not therefore be described as works market; Consequently, the plea that the City of Paris was required to follow the procedure for design-build contracts, as defined by Article 69 (I), can only be ruled out.

15. Lastly, it appears from the investigation that the applications selected for the dialogue phase were evaluated, according to the consultation rules, against three criteria weighted at 50 per cent. % and 15 %, relative, for the first, to the technical capabilities and human and material resources, for the second, to the references related to "skills expected in the framework of the execution of the market: advertising use associated with street furniture; urban furniture design; manufacture and maintenance of urban furniture; maintenance of urban furniture; animation of a network of professionals ", and, for the third, to financial capacities; that the city of Paris having decided to admit to the dialogue only three candidates, the candidature of the grouping applicant, ranked fourth after evaluation of its merits, was discarded; that informing the grouping of this rejection, the city indicated to him that it had obtained the note of 4/10 for the second criterion by specifying that if it had "presented three relevant references in the advertising exploitation associated to street furniture "He had presented" none in terms of animation of a network of professionals "and had reported" no title of studies or professional qualifications related to design or design trades for furniture comparable to kiosks "nor" any reference in the field of the press ";

16. Considering that by mentioning the absence of references in the press field, the letter sent by the city of Paris to the applicants did not reveal the existence of a criterion for the assessment of applications different from the criterion relating to the expected skills that had been brought to the attention of the candidates; that if the applicants argue the titles or references they had submitted to challenge the terms of this letter, it is not for the pre-contractual judge to assess the merits of the applications;

17. Considering that it follows from all the foregoing that the requests of the companies Extérion Média France and Derichebourg SNG can only be rejected;

18. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the charging of the City of Paris which is not, in the present case, the losing party, the sum demanded by Extérion Média France and Derichebourg SNG for the costs incurred by them and not included in the costs; that, on the other hand, in the circumstances of this case, it is appropriate, under the same provisions, to charge the latter a total sum of € 4,500 to be paid to the City of Paris for the whole of the procedure;

DECIDE:
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Article 1: The order of the judge of the summary court of the Administrative Court of Paris of April 9, 2015 is canceled.
Article 2: Applications submitted by the companies Extérion Média France and Derichebourg SNG are rejected.
Article 3: The companies Extérion Média France and Derichebourg SNG will pay to the city of Paris a total sum of 4 500 euros under article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the city of Paris, the company Extérion Média France, the company Derichebourg SNG, the company Médiakiosk, the company Clear Channel France, the company Insert, the company Séri and Kawet society.

Summary: On a plea alleging irregularity in the use of a global contract, it is for the court to determine whether the analysis to which the contracting authority has proceeded and the justifications it provides are, in view of the margin It is accepted that devolution in separate lots has one of the disadvantages mentioned in Article 10 of the Public Procurement Code (CPM), which is vitiated by incorrect assessments.

It is not for the pre-contractual judge to assess the merits of the applications.

[RJ1] Cf. EC, October 27, 2011, Department of Bouches-du-Rhône, No. 350935, T. p. 1009.