A rating method is tainted with illegality if it is such as to deprive the evaluation criteria of the offers of tenders or to neutralize their weighting.
This 1st of July 2015, SNEGSO, n ° 381095
In this case, the Council of State recalls that a method of rating is vitiated by illegality if it is such as to disqualify the criteria for judging offers or to neutralize their weighting so that the best score is not not awarded to the best offer.
Rule n ° 1: Illegality of the method of rating offers in an alloti market which leads to not giving the best score to the best offer
The rating method is the mechanism implemented by the contracting authority to evaluate the merits of the offers in terms of the judging criteria and to rank them according to the results of this evaluation. This method is therefore supposed to be neutral and does not affect the construction of tenders. This is why the Council of State considers that if the contracting authority freely defines the rating method for the implementation of the criteria for judging the offers it has announced, this must not have the effect to deny the said criteria or to neutralize their weighting and thereby avoid that the best score is not awarded to the best offer.
In this case, it was a global market divided into ten technical lots. For the implementation of the price criterion, the contracting authority had decided to proceed to a lot by lot notation, before making the arithmetic average of the various scores obtained to calculate an overall score. However, the grading method thus used resulted in an overall mark without taking into account the disparity of the values of the different lots and did not make it possible, by way of identifying, for each lot, the offer whose price was actually the most advantageous. . This is the reason why the Council of State considers that such a method of scoring offers that does not allow to give the best score to the best offer for the price criterion is illegal.
Rule n ° 2: The contracting authority is not required to publish its method of rating bids in the consultation regulations (EC 31 March 2010, Corsica territorial authority, application no. 334279).
In this respect, the Conseil d'Etat considers that an unsuccessful candidate is justified in complaining to the judge of the pre-contractual summary of the method of scoring tenders even though he has made no criticism during the whole procedure of placing in competition.
Board of state
N ° 381095
Mentioned in the tables of Lebon collection
7th / 2nd SSR
Stéphane Bouchard, rapporteur
Mr Bertrand Dacosta, public rapporteur
SCP THOUIN-PALAT, BOUCARD; SCP JEAN-PHILIPPE CASTON, lawyer (s)
read date Wednesday, July 1st, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The Southwest General Contractor Company (SNEGSO) has asked the Pau Administrative Court to order Habitat Sud Atlantic to pay him the sum of 274,335.88 euros in compensation for the damage caused by his improper dismissal of the appeal. open tender for the award of a public works contract for the redevelopment program of a residence.
By a judgment n ° 1101659 of February 21, 2013, the administrative court of Pau condemned Habitat Sud Atlantic to the payment with the SNEGSO of the sum of 268 386 euros HT with interest at the legal rate as of July 1, 2011.
By judgment no. 13BX01149, 13BX01574 of 8 April 2014, the Bordeaux Administrative Court of Appeal annulled this judgment, on the application of Habitat Sud Atlantic, dismissed the compensation claims of SNEGSO and decided that it It was not necessary to rule on the claims for suspension of execution of the same judgment.
By a summary appeal and a supplementary memorandum, registered on 10 June and 10 September 2014 to the litigation secretariat of the Conseil d'Etat, SNEGSO asks the Conseil d'Etat to:
1 °) to annul Articles 1 and 2 of the judgment of 8 April 2014 of the Administrative Court of Appeal of Bordeaux;
2 °) settling the case on the merits, to reject Habitat Sud Atlantic's appeal request;
3 °) to charge Habitat Sud Atlantic the payment of the sum of 4,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mr. Stéphane Bouchard, Maître des Requests for Extraordinary Service,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;
The word was given, before and after the conclusions, to the SCP Jean-Philippe Caston, lawyer of the new general company of south-west, and to SCP Thouin-Palat, Boucard, lawyer of the company Habitat Sud Atlantic;
1. Considering that it appears from the documents in the file submitted to the judges of the bottom that, by a notice of public call published on December 1, 2010, the group of orders consists of the Office public habitat Bayonne Habitat Habitat Sud Atlantic, whose rights comes from Habitat Sud Atlantic, has opened an open bidding process for the award of a single contract for work on the redevelopment program for the foot of buildings and requalification of shops, facades, cellars and mezzanine of a residence; that, by a letter of 22 March 2011, the new Southwest General Contractor (SNEGSO) was informed of the rejection of its bid; that this company appeals in cassation against the judgment of April 8, 2014 of the administrative court of appeal of Bordeaux as, on the one hand, that it cancels the judgment of February 21, 2013 by which the administrative court of Pau has sentenced Habitat Sud Atlantic to pay him the sum of 268 386 euros, with interest at the legal rate in compensation for the damage suffered by this company because of his eviction and secondly, that he rejects his conclusions compensators;
2. Whereas the contracting authority freely defines the rating method for the implementation of each of the bid selection criteria it has defined and made public; whereas, however, a method of grading is flawed if, in breach of the fundamental principles of equal treatment of candidates and transparency of procedures, it is in itself such as to deprive the selection criteria of their scope or to neutralize their weighting and is therefore likely to lead, for the implementation of each criterion, that the best score is not awarded to the best offer or, in view of all the weighted criteria that the economically most advantageous offer is not chosen; that is the case even though the public corporation, which is not required to do so, would have made public such a method of notation in the notice of competition or the documents of the consultation;
3. Considering that in judging, having noted that the market was a global market divided into ten technical batches and that the contracting authority had decided, for the implementation of the price criterion, to proceed to a lot by lot notation, before making an arithmetic average of the various marks obtained to calculate an overall mark, that the method of notation thus used was not tainted with irregularity, whereas it appeared from the documents in the file submitted for his examination that the calculation of the overall note did not allow for the wide disparity of the values of the different lots and, consequently, to identify the offer whose price was actually the most advantageous, the Administrative Court of Appeal made an error of law; It follows that, without it being necessary to examine the other grounds of appeal, SNEGSO is justified in seeking the annulment of Articles 1 and 2 of the judgment under appeal by which the Administrative Court of Appeal de Bordeaux annulled the judgment of the Administrative Court of Pau of 21 February 2013 and dismissed its claims conclusions;
4. Considering that it is appropriate, in the circumstances of the case, to charge Habitat Sud Atlantic the payment to SNEGSO of the sum of 3,000 euros under the provisions of Article L. 761-1 of the Administrative Justice Code; that these provisions preclude the payment of an amount to SNEGSO, which is not the losing party in this proceeding;
Article 1: Articles 1 and 2 of the judgment of 8 April 2014 of the Administrative Court of Appeal of Bordeaux are annulled.
Article 2: The case is referred to the Administrative Court of Appeal of Bordeaux.
Article 3: Sud Atlantic Habitat will pay to the new company of general contractor of the southwest the sum of 3 000 euros under article L. 761-1 code administrative justice.
Article 4: The conclusions presented by Habitat Sud Atlantic under article L. 761-1 code administrative justice are rejected.
Article 5: This decision will be notified to the Southwest General Contractor Corporation and Habitat Sud Atlantic.
Overall contract divided into ten technical lots, for which the contracting authority has decided, for the implementation of the price criterion, to proceed to a lot by lot notation, before making the arithmetic average of the various scores obtained to calculate an overall score ....
Since the calculation of the overall score does not make it possible to take account of the great disparity in the values of the different lots and, consequently, to identify the offer whose price was actually the most advantageous, this method is tainted with irregularity.
[RJ1] Cf., on the grid of analysis of the regularity of a method of notation, CE, November 3, 2014, Municipality of Belleville-sur-Loire, n ° 373362, p. 323.