The principles of allotment apply to control groupings
In this case, the Council of State recalls two rules:
- First, that the principles of allotment apply to control groups;
- The second, that it is forbidden to provide in a regulation of the consultation a rule according to which the different markets (or lots) will be allotted to the same company.
Rule n ° 1:
Article 10 of the Code des Marches Publics establishes the allotment in principle to encourage the widest competition between companies and allow them, whatever their size, to access the public order. All contracts must therefore in principle be placed in separate lots where their purpose allows the identification of separate services.
However, Article 10 of the Code allows public purchasers to be exempted from this rule of principle and to resort to a global market where the allotment is made difficult by (1) technical reasons, linked to difficulties relating, for example, to the need to maintain the coherence of services or to the inability of the public purchaser to carry out himself the tasks of organization, control and coordination; (2) economic reasonswhere the allotment is likely to restrict competition; or (3) financial reasons, when it is likely to significantly increase the cost of the service.
In this case, the public purchaser must justify his position, in other words, justify it in support of it and not be content to "invoke" one of the three grounds in order to be exempt from the rule of principle (CE 3 December 2012, mixed union of Besançon and its region for the treatment of garbage (SYBERT), req.n ° 360333).
Rule n ° 2:
The principle of the allotment provided for by Article 10 of the Public Procurement Code applies to the grouping of orders. In other words, it is not because a market or several markets have gone through a consortium to pool its needs that the allotment rule provided for in Article 10 of the Code des Marches Publics must not apply.
In this case, the consultation launched by the intercommunal syndicate as coordinator of a group of orders for the completion of development work on a communal street referred to three separate contracts, the first of which would be concluded with the SIEBR and the two others with the municipality concerned without however allotir the benefits. The Council of State will therefore censure the procedure of advertising and competition for violation of the provisions of Article 10 of the Code des Marches Publics.
Rule n ° 3:
The Council of State takes the opportunity to censor also the mention of the regulation of the consultation which provides that the various markets launched by the group of command will be attributed to the same company. Such mention is considered to be contrary to the freedom of access to public procurement and the principle of equality between candidates. In the present case, the consultation rules referred to three distinct markets, while stating that the three markets would be concluded with the same company.
Board of state
N ° 389740
7th / 2nd SSR
Reading of Friday, September 18th, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The Sorodi company has asked the judge of the administrative court of Grenoble, on the basis of Article L. 551-1 of the Code of Administrative Justice, to cancel the procedure initiated by the inter-communal union of the waters of Lower Roubion (SIEBR) ) as coordinator of a group of orders formed with the municipality of La Bégude de Mazenc, for the realization of development works of the rue des Moulins in this municipality.
By an order n ° 1501865 of April 9, 2015, the judge of the administrative court of Grenoble annulled this procedure.
By a summary appeal and a supplementary memorandum, registered on 24 April and 11 May 2015 at the litigation secretariat of the Conseil d'Etat, the SIEBR asks the Conseil d'Etat to:
1 °) to cancel this order;
2 °) to charge the company Sorodi the sum 3 500 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 Olivier Henrard, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Didier, Pinet, lawyer of the intermunicipal syndicate of the waters of low Roubion, and to the SCP Garreau, Bauer-Violas, Feschotte-Desbois, lawyer of the company Sorodi;
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. "
2. Considering that it appears from the documents in the file submitted to the judge hearing the application for interim relief that, by a public notice of competition published in December 2014, the inter-communal water union of Bas Roubion (SIEBR) has launched a procurement procedure a modified procedure contract as coordinator of a group of orders formed with the municipality of La Begude de Mazenc to carry out development work on a street in this municipality; that the documents of the consultation referred to three separate contracts, the first of which would be concluded with the SIEBR and the two others with the commune; that the regulation of the consultation specified that the three contracts had to be concluded with the same entrepreneur or group of entrepreneurs;
3. Considering that under Article 8 of the Code des Marches Publics: "(...) groups of command may be constituted: (...) 2 ° Between local authorities, between local public institutions or between local authorities and local public institutions; (...) A constitutive agreement is signed by the members of the group. / It defines the operating procedures of the group. / It designates a coordinator among the members of the group, having the status of contracting authority (...). / This one is in charge of proceeding, in the respect of the rules envisaged by this code, with the organization of all the operations of selection of one or more contracting parties. / Each member of the group undertakes, in the agreement, to sign a contract with the successful contracting partner to the extent of his own needs, as he has previously determined (...) "; according to Article 10 of the same Code: "In order to encourage the widest competition, and unless the subject of the contract does not allow the identification of separate services, the contracting authority shall award the contract in separate lots ( ...). / However, the contracting authority may 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 is technically difficult or financially expensive to perform the services or because it is unable to carry out the tasks of organization, steering or coordination on its own ";
4. Considering, in the first place, that the abovementioned provisions of Article 10 of the Public Procurement Code, which provide for the principle of devolution of public contracts in batches and define the assumptions under which a global market may be concluded, are applicable when a group of orders has been established under the conditions laid down in Article 8 of the Code des Marches Publics; that the judge hearing the application for interim measures has made no error of law on this point; Nor did it err in law in setting aside the contentious procedure, initiated by SIEBR as coordinator of the grouping of orders, on the ground that the union could not legally provide that the three separate markets which were to be concluded with the same beneficiary;
5. Considering, secondly, that SIEBR could not usefully argue before the judge for interim relief that recourse to a global market was possible under the conditions laid down in the second paragraph of Article 10, cited above, as has been stated above, that he himself had decided to make three separate contracts; Consequently, and in any event, the pleas alleging that the judge hearing the application for interim measures did not reply to the union's argument based on the technical difficulties which would arise from the allotment of benefits and made an error of error. right by not investigating whether recourse to a global market was possible, can only be ruled out;
6. Considering that it follows from the foregoing that the appeal of the SIEBR must be dismissed;
7. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude Sorodi being charged with the charge which is not, in the present case, the losing party, the the amount claimed by SIEBR for costs incurred by it and not included in costs; whereas, on the other hand, in the circumstances of this case, the same provisions should be made to charge the union a sum of 3,000 euros to be paid to Sorodi;
Article 1: The appeal of the intercommunal syndicate of waters of Lower Roubion is rejected.
Article 2: The intercommunal syndicate of the waters of Bas Roubion will pay the sum of 3 000 euros to the company Sorodi under article L. 761-1 code administrative justice.
Article 3: This decision will be notified to the inter-communal union of the waters of Bas Roubion and the company Sorodi.
Article 10 of the Code des Marches Publics, which provides for the principle of a devolution of public contracts in batches and defines the assumptions in which a global market can be concluded, is applicable when a group of orders has been formed under the conditions provided for in Article 8 of the same Code.