Validation of the clause "I reserve the right to negotiate" episode 1
CE 18 September 2015, Sté AXES, req.no. 380821
In this case, the Council of State makes two interesting clarifications regarding the adapted procedure contracts: the first one, concerning the possibility to provide in the regulation of the consultation a clause according to which the candidates are informed that the public purchaser " reserves the right to negotiate "; the second, concerning the possibility of using candidates' experience and therefore their professional references as a criterion for judging offers.
Rule n ° 1: validation of the mention " reserves the right to negotiate "
The Council of State draws the attention of public buyers to the importance of drafting the consultation documents by distinguishing between two very specific hypotheses which do not have the same consequences.
Hypothesis n ° 1:
If the public purchaser has decided to make use of his faculty to negotiate within the framework of an adapted procedure, he must inform the candidates of this at the start of the procedure and cannot then give up negotiating during the procedure. Concretely: the public purchaser cannot negotiate with the candidates if this option is not clearly announced to the candidates in the consultation regulations. If the buyer indicates that negotiations will be carried out with the candidates, he can no longer give up negotiating during the procedure. He will be bound by the information indicated in his consultation rules and the decision to use negotiation cannot be usefully criticized before the judge.
If the public purchaser indicates in his consultation regulations “that he reserves the right to negotiate”, he is not obliged to negotiate during the procedure. On the other hand, if he chooses, as he is free to do, to negotiate only with some of the candidates who have made an offer, it is up to the judge, seized of a means on this point, to ensure that he has not disregarded any of the rules which are imposed on him, in particular the principle of equal treatment between candidates.
To avoid any irregularity, the consultation rules will then have to specify whether the negotiation will be with all the candidates or only with some of them (example, the first three candidates having presented the most economically attractive offer).
If it is indicated that the negotiation will relate to all the elements of the offer, in other words all the criteria for judging the offers, the public buyer will have to make an initial analysis of the offers and classify them before starting the negotiations on the understanding that those who have submitted irregular offers may be admitted to participate in the negotiations.
Rule n ° 2: the use as a criterion of judgment of the offers of the experience of the candidates in certain cases
In an adapted procedure, a public buyer has the option of using the experience of candidates as a criterion for judging offers, this criterion then being assessed in relation to professional references relating to the performance of other similar contracts. But only in certain cases: when the use of this criterion appears objectively necessary by the object of the contract and the nature of the services to be provided and has no discriminatory effect.
In this case, the Council of State considers that the reception and technical assistance services to be provided were present, in particular with regard to the location of the Ecole du Louvre within a palace which annually hosts millions of visitors, great specificities which justify taking into account the experience of candidates among the criteria for selecting offers. The regularity of the use of this criterion therefore depends on the specific nature of the subject of the contract and must be assessed on a case-by-case basis.
The Council of State further considers that this criterion could not be regarded as having a discriminatory effect on the grounds of its low impact on the rating of offers, being weighted only up to 5 %.
This solution is questionable in terms of the regulations in force but also in relation to the desire displayed (and only displayed) to encourage young companies to access public procurement.
Under the provisions of article 52 of the public contracts code, the absence of references relating to the execution of contracts of the same kind cannot justify the elimination of a candidate and does not exempt the contracting authority from examining the professional, technical and financial capacities of the candidates.
These provisions are clear and do not suffer from any possible derogation: the current regulations "prohibit" the selection of candidates on the basis of professional references. This is the reason why, in a judgment dated June 17, 2015, Sté Philip Frères, considering n ° 3, the Council of State recalled that a public buyer rejecting an application based solely on the absence or insufficient references to similar markets (CE June 17, 2015, Sté Philip Frères, req.n ° 388596, also TA Paris, Ord. 13 October 2010, Sté TUC Rail, page 14, with comments in the review Contracts and Public Markets).
Professional references cannot intervene in the process of selecting candidates or offers since, in any event, the absence or insufficient references are neutralized by article 52 of the public procurement code. In other words, if a public purchaser does so, its effects are neutralized at the selection or scoring stage except to vitiate its decision or the scoring process of error of law.
Consequently, in the current state of the regulations, a public purchaser cannot rate an application or an offer on the basis of a criterion which is based solely on professional references or a minimum number of references.
And the references cannot therefore be set up as an “autonomous” criterion for the selection of candidates or offers.
It is difficult to understand the difference made by the Council of State between formalized procedures and non-formalized procedures since article 52 makes no distinction of this type.
That the quality of the proposed team is set up as a criterion for judging tenders, yes, but that candidates are judged according to the number or importance of professional references in a given sector, no. There is a significant difference there which did not seem to alert the wise men of the Royal Palace and it is a shame.
Board of state
N ° 380821
ECLI: FR: CESSR: 2015: 380821.20150918
Mentioned in the tables of Lebon collection
7th / 2nd SSR
Mr François Lelièvre, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP LYON-CAEN, THIRIEZ; SCP COUTARD, MUNIER-APAIRE, lawyer (s)
Reading of Friday, September 18th, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The Axcess company asked the Paris administrative court, on the one hand, to cancel the public contract for reception services and technical assistance concluded between the Ecole du Louvre and the Alzane company as well as the rejection by the Ecole du Louvre for his compensation claim and, on the other hand, to order the Ecole du Louvre to pay him the sum of 158,292.16 euros plus interest at the statutory rate, in compensation for the damage suffered as a result of his illegal eviction .
By a judgment n ° 1114361 / 3-2 of April 18, 2012, the Paris administrative court rejected his request.
By a decision No. 12PA02599 of March 18, 2014, the Paris Administrative Court of Appeal dismissed the appeal brought against this judgment of the Paris Administrative Court by the company Axcess.
By a summary appeal, a supplementary memorandum and two reply briefs, registered on June 2 and July 23, 2014 and on May 21 and June 1, 2015 at the litigation secretariat of the Council of State, the company Axcess requests the Council of State:
1 °) to annul this judgment;
2 °) settling the case on the merits, to grant his conclusions of appeal;
3 °) to charge the Louvre School with the payment of the sum of 4,000 euros in respect of the costs incurred and not included in the costs.
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 François Lelièvre, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The floor having been given, before and after the conclusions, to SCP Coutard, Munier-Apaire, lawyer for the company Axcess, and to SCP Lyon-Caen, Thiriez, lawyer for L'Ecole du Louvre;
1. Whereas under article R. 741-2 of the code of administrative justice: “The decision mentions that the hearing was public (...). / It contains the names of the parties, the analysis of the conclusions and briefs as well as the visas of the legislative or regulatory provisions which are applied / (...) Mention is also made of the production of a note under advisement (. ..) “; it follows from these provisions that, when regularly seized at the end of the hearing of a note under advisement emanating from one of the parties, it is in all cases for the administrative judge to take it knowledge before rendering a decision as well as targeting it;
2. Considering that it appears from the documents in the proceedings before the Paris Administrative Court of Appeal that after the public hearing held on March 4, 2014, the Ecole du Louvre and the company Axcess each addressed to the court a note under advisement; that these notes under deliberation were recorded at the registry on March 5 and 6, 2014 and were authenticated by written and signed letters, recorded on March 7 and 10; that they are not affected by the judgment under appeal, which is thus vitiated by irregularity; that as a result and without it being necessary to examine the other grounds of the appeal, the company Axcess is justified in requesting its cancellation;
3. Considering that in application of article L. 821-2 of the code of administrative justice, it is necessary, in the circumstances of the case, to settle the case on the merits;
4. Considering that, by a notice published on April 22, 2011, the Ecole du Louvre launched a consultation with a view to the award of a public contract for reception and technical assistance services on its two sites, according to an adapted procedure, in accordance with articles 28 and 30 of the public procurement code; that the company Axcess, whose offer classified in 5th position has been rejected, is subject to appeal from the judgment of April 18, 2012 by which the administrative court of Paris rejected his request for the cancellation of this contract concluded with the company Alzane and the condemnation of the Ecole du Louvre to pay him compensation for the damage resulting from the rejection of its offer;
5. Considering, firstly, that if the applicant company claims that the administrative court has, in violation of the prescriptions of article R. 741-2 of the code of administrative justice, omitted to mention, in the visas of its judgment , a reply which it produced on 20 March 2012, that is to say before the close of the investigation set for 20 March 2012, such a circumstance is not, in itself, likely to vitiate the regularity of the judgment attacked since it appears from the documents in the file that these pleadings did not add any new element to which no answer was given in the reasons for judgment;
6. Considering, secondly, that under article 28 of the public procurement code: “When their estimated value is lower than the formalized procedure thresholds defined in article 26, supply, service or of works may be carried out according to an adapted procedure, the terms of which are freely fixed by the contracting authority according to the nature and characteristics of the need to be satisfied, the number or location of the economic operators likely to meet it as well as circumstances of purchase. / The contracting authority may negotiate with candidates who have submitted an offer. This negotiation can relate to all the elements of the offer, in particular on the price. / (...) “; that under the second paragraph of article 42 of the same code: "For contracts awarded according to an adapted procedure, the payment of the consultation may be limited to the main characteristics of the procedure and the choice of offer";
7. Considering that if the contracting authority has decided to make use of its power to negotiate within the framework of an adapted procedure, it must inform the candidates of this as soon as the procedure is launched and cannot then renounce to negotiate during the procedure ; that it can also be limited to informing the candidates, when launching the procedure, that it reserves the possibility of negotiating, without being bound, if it actually decides to negotiate after the submission of tenders, to inform all the candidates;
8. Considering that the decision of the contracting authority to resort to negotiation within the framework of an adapted procedure cannot be usefully criticized before the judge; that on the other hand, if he chooses, as he is free to do, to negotiate only with some of the candidates who have presented an offer, it is up to the judge, seized of a plea on this point, to s '' ensure that he has not disregarded any of the rules which apply to him, in particular the principle of equal treatment of candidates;
9. Considering that it follows from the above, on the one hand, that the Ecole du Louvre could, without ignoring its obligations in matters of publicity and competition, be limited to providing, in article 5.41. 4 of the particular administrative clauses, that it reserved the right to negotiate with the first three candidates of the classification, on the other hand, that its decision to resort to negotiation cannot be usefully criticized;
10. Considering, thirdly, that under the terms of I of article 53 of the public procurement code: “To award the contract to the candidate who has presented the most economically advantageous tender, the contracting authority is based: / 1 ° Or on a plurality of non-discriminatory criteria related to the subject of the contract, in particular quality, price, technical value, aesthetic and functional character, performance in terms of environmental protection, performance in professional integration of people in difficulty, the overall cost of use, profitability, innovative character, after-sales service and technical assistance, delivery date, delivery or execution time. Other criteria can be taken into account if they are justified by the subject of the contract; / 2 ° Or, taking into account the subject of the contract, on a single criterion, which is that of the price “; that these provisions allow the contracting authority to retain, in an adapted procedure, to choose the most economically advantageous tender, a criterion based on the experience of the candidates, and therefore on their references relating to the performance of other contracts, when taking it into account is made objectively necessary by the subject of the contract and the nature of the services to be provided and has no discriminatory effect;
11. Considering that, as pointed out by the contracting authority without being contradicted, the reception and technical assistance services to be provided presented, having regard in particular to the location of the Ecole du Louvre within a palace which accommodates each year millions of visitors, of great specificities; that, under these particular conditions, taking into account the experience of the candidates among the criteria for selecting tenders could be regarded as made objectively necessary by the subject of the contract; that this criterion could not be regarded as having a discriminatory effect; that it was also weighted up to 5 % only; whereas, therefore, the plea alleging that the candidates' references were not among the criteria which could be used to select the tenders must be rejected;
12. Considering, lastly, that the company Axcess is appealing the pleas it had raised at first instance, alleging that, first, its offer was rejected on the grounds that it had not produced a schedule work when the documents of the consultation did not impose the production of such a document, secondly, that the choice of the successful tenderer is vitiated by manifest errors of assessment and, thirdly, that the successful tenderer did not present sufficient technical, professional and financial capacity; that these grounds should be rejected by adoption of the grounds retained by the Paris administrative court, the judgment of which is sufficiently reasoned;
13. Considering that it follows from all of the above that the company Axcess is unfounded to maintain that it was wrong that, by the judgment under appeal, the administrative court of Paris rejected his requests for annulment of the contract for the provision of reception and technical assistance services concluded between the Ecole du Louvre and the company Alzane and to order the establishment to pay it compensation for the damage suffered by it as a result of the rejection of his offer ;
14. Considering that the provisions of article L. 761-1 of the code of administrative justice prevent an amount from being put in this respect at the expense of the Ecole du Louvre, which is not, in this proceeding, the losing party; that it should, however, under the same provisions, to charge the company Axcess the payment to the School of the Louvre of a total sum of 4,500 euros for the procedure followed before the Council of State and the administrative court of appeal;
Article 1: The judgment of the Paris Administrative Court of Appeal of March 18, 2014 is set aside.
Article 2: The request presented by the company Axcess before the administrative court of appeal of Paris is rejected.
Article 3: The company Axcess will pay the Ecole du Louvre a sum of 4,500 euros under the provisions of article L. 761-1 of the code of administrative justice. The conclusions presented in the same way by the company Axcess are rejected.
Article 4: This decision will be notified to Axcess and to the Ecole du Louvre.
A copy will be sent for information to Alzane.
If the contracting authority has decided to make use of its power to negotiate within the framework of an adapted procedure, it must inform the candidates of this as soon as the procedure is launched and cannot then give up negotiating during the procedure. He may also confine himself to informing the candidates, when the procedure is launched, that he reserves the right to negotiate, without being bound, if he actually decides to negotiate after the submission of tenders, to inform the all the candidates .... ,, The decision of the contracting authority to resort to negotiation within the framework of an adapted procedure cannot be usefully criticized before the judge. On the other hand, if he chooses, as he is free to do, to negotiate only with some of the candidates who have made an offer, it is up to the judge, seized of a means on this point, to ensure that he has not disregarded any of the rules which are imposed on him, in particular the principle of equal treatment between candidates.