Alternative solutions in public markets: a new opportunity for public buyers
CE 21 October 2015, Greater Dijon Urban Community. req.n ° 391 311
In this case, the Conseil d'Etat considers that an alternative solution imposed for the performance of all or part of the services covered by the contract can not be equated with either an option or a variant. The alternative solution referred to in that judgment differs from these two concepts and is of particular interest to the contracting authorities in the context of the awarding of their contracts.
1- Reminder of the context:
In the present case, the market consultation regulation on the conduct of pre-investigation investigations for eco-mobility investment projects excluded variants and options while the special technical clauses required that they formulate, for home surveys, two alternative data entry proposals, one in writing and the other directly in digital form.
The regulation of the consultation indicated that these two solutions should be quantified in the act of engagement and that they would be judged according to the same criteria of judgment of the offers. Lastly, it was stated that the two solutions would be assessed separately according to the same criteria and that the contracting authority reserved the right to select only one of these two solutions.
Given the mechanism put in place by the consultation documents, the Conseil d'Etat considers that the commitment requirement for two alternative solutions can not be assimilated to a variant or an option, but that the proposal for data on support digital technology was simply an alternative to paper.
2- An alternative solution is not a variant.
The variants are "modifications, at the initiative of the candidates, specifications provided in the basic solution described in the documents of the consultation" (Council of State, January 5, 2011, Alpine Safety Technology Company No. 343206). They allow candidates to propose to the contracting authority a solution or means, other than those fixed in the specifications or, more generally in the consultation file, to perform the services of the contract. It may, for example, be a different solution from that provided for by the contracting authority, innovative if necessary, or by means unknown to the contracting authority, which allow the candidate to submit a cheaper or technically superior tender. They can also consist in adjusting the financial conditions of the market.
The alternative solution as evoked in the Conseil d'Etat judgment differs from the variant since the candidates are required to answer them from both a technical and a financial point of view.
The alternative solution as defined by the Council of State is on the other hand approaching the new regime of the "mandatory" variants provided for in Article 45 of Directive 2014/24 / EC of the European Parliament and of the Council provides for new rules applicable to Procurement and execution of public contracts (and Article 55 of the draft decree on the new Public Procurement Code).
Indeed, it is now provided that the contracting authorities may authorize tenderers to submit variants "or require such a presentation" provided that this is clearly indicated in the documents for the consultation.
It is then up to the contracting authority to authorize 'or require variants' to mention in the procurement documents the minimum requirements that the variants must comply with as well as any special conditions of their submission, indicating in particular whether they may be submitted only if an offer that is not a variant has also been submitted. They also ensure that the award criteria applied can be applied both to variants that meet these minimum requirements and to compliant offers that are not variants.
However, this system is not yet transposed into national law and will not be transposed until 18 April 2016 at the latest in application of Article 90 of the Directive, but it is worth mentioning.
3- An alternative solution is not an additional benefit.
The options are possible additional services (PES) that candidates must offer in their offer and that the contracting authority reserves the right to order or not.
The contracting authority may ask the candidates to propose additional services in their tender, which it reserves the right to order or not when signing the contract (41). These services must be directly related to the subject of the contract and the specifications must define their technical specifications with precision.
However, an alternative solution can not be assimilated into a PES since it is not an additional benefit but a method of performance of the services of the market for which the power requires that the candidates make a technical and financial proposal.
Board of state
Mrs Charline Nicolas, rapporteur
Mr Gilles Pellissier, public rapporteur
Reading of Wednesday, October 21, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
On 21 May 2015, the SA Test asked the Pre-contractual Pre-Trial Judge of the Dijon Administrative Court, on the one hand, to annul the procedure launched by the urban community of Greater Dijon with a view to awarding a contract for on the implementation of pre-project mobility surveys related to eco-mobility as well as the decision of 11 May 2015 of the urban community to reject its offer and, on the other hand, to enjoin the community to provide him with the bid analysis report.
By an order n ° 1501424 of June 11, 2015, the pre-contractual judge of the Dijon administrative court annulled the procedure of awarding the contract in question and rejected the surplus of the conclusions of the plaintiff.
By a summary appeal and a complementary memorandum, registered on June 25th and July 9th, 2015 at the litigation secretariat of the Conseil d'Etat, the urban community of Greater Dijon asks the State Council:
1 °) to annul this order insofar as it annulled the procedure for awarding the contract at issue;
2 °) settling the case under the interlocutory proceedings initiated, to reject the application of the SA Test;
3 °) to charge the SA Test 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 Mrs Charline Nicolas, auditor,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Lévis, lawyer of the urban community of Greater Dijon;
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 tendering procedure for the performance of works, the supply of supplies or the provision of services, with an economic counterpart consisting of a price or a right of delegation of a public service or the selection of a shareholder operator of a single-purpose mixed economy company. / The judge is seized before the conclusion of the contract. " that according to the article L. 551-2 of the same code: "I. - The judge can order the author of the failure to comply with his obligations and suspend the execution of any decision which relates to the conclusion of the contract except where 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 finally the article L. 551-3 of the same code provides: "The president of the administrative court or his delegate decides in the first and last resort in the form of the referred. "
2. Considering that it appears from the documents of the file submitted to the judges of the bottom that the urban community of Greater Dijon launched on February 27, 2015 an open call for tenders in order to award a contract for the realization of preliminary investigations to investment projects related to eco-mobility, relating to travel; that the 11 May 2015, the urban community informed the SA Test of the rejection of its offer and the attribution of the market to its competitor the company Alyce Sofreco, by a mail including also a synthetic table of appreciation of the offers with regard to the two criteria; that on May 13, 2015, the SA Test asked the urban community to communicate the notes awarded to the successful tenderer as well as to herself for each of the twenty-three sub-criteria against which the overall technical value had to be established offers ; that on May 21, 2015, she asked the pre-contractual judge of the Dijon Administrative Court, on the one hand, to cancel the procedure and the decision of May 11, 2015 and, on the other hand, to order the urban community to communicate the bid analysis report; that by the order contested June 11, 2015, the judge of the pre-contractual interim administrative court of Dijon canceled the procedure of awarding the contract and rejected the surplus of its conclusions;
3. Considering that it follows from the documents in the file submitted to the judge of the pre-contractual injunction that Article 3-6 of the consultation rules excludes variants and options; that, according to articles 1-2 and 3-2 of the special technical clauses, the surveys, subject of the contract, were to be carried out according to two complementary modes of operation, respectively by a transfer of the investigators to the homes of households and by telephone, each of these two types of surveys giving rise to a specific questionnaire in accordance with Article 2-7 of the same document; that, with regard to home surveys, it follows from Article 3-3 of the same technical specifications that the contracting authority required candidates to formulate "In order to reduce the costs of collection (...) and to optimize the quality of the data collected "two alternative data entry proposals, one on written media and the other directly on digital media; that, moreover, article 5-1 of the regulation of the consultation mentions among the "Justifications (or contents) of the offer: / (...) - Decomposition of the global and fixed price (to quantify obligatorily the two solutions) "And that Article 6 of that same regulation provided for the judgment of the proposals a single and same list of criteria of analysis of the technical value; that finally, the act of commitment distinguishes in its article Price the "Amount of the solution 1 - Face to face survey" of the "Amount of the solution 2 - Digital support" and asks the candidates to engage on the amounts each of the solutions; that the judge of the pre-contractual recalls, which pointed out precisely that the requirement posed by the documents of the consultation, that the candidates submit a proposal of data capture in digital medium, was to be considered as an alternative solution to the seizure on paper and could not be assimilated either to an option or to a variant, could not, without distorting the documents in the file submitted to it, consider that the urban community had not brought to the attention of the candidates the that the two solutions would be the subject of a separate assessment, according to the same criteria, and that the contracting authority reserved the right to select only one of these two solutions; It follows that the order under appeal must be annulled in so far as it annulled the procedure for awarding the contract at issue.
4. Considering that it is necessary, in the circumstances of the case, to rule on the application for interim measures presented by the SA Test in application of the provisions of Article L. 821-2 code administrative justice;
5. Considering that if the SA Test maintains that the urban community has violated the provisions of the second paragraph of I of I of Article 80 of the Code des Marches Publics, according to which "the notification specifies the name of the recipient and the reasons which led to the selection of its offer to the candidates who submitted an offer and to those who have not yet communicated the rejection of their application ", it appears from the documents in the file that the letter of 11 May 2015, informing the company the rejection of its tender and the award of the contract to its competitor, includes a table assessing the offers made by the two companies for "solution 2" in the light of the two criteria provided for by the regulation of the consultation and that the In addition, the urban community produced the rating tables of the two offers for each of the two solutions, showing that SA Test was ranked second in both cases;
6. Considering that if the SA Test maintains that the rules of the consultation were ignored, since the "solution 2" of data capture on digital medium was retained while the variants and the options were excluded, it results from what has been said above that this proposal, which was compulsorily requested of the candidate, should be regarded as an alternative solution to paper-based entry and could not be equated with either an option or a variant;
7. Considering that if the SA Test maintains that the rules of the consultation were contradictory and imprecise, since they excluded variants and options while providing for a "solution 2" of data entry and they did not mention that the latter solution had to be assessed according to the marking criteria set out in the Rules of the Consultation, it follows from what has been said above, on the one hand, that the proposal for data entry on digital media requested from candidates does not was neither an option nor a variant and, secondly, that the rules of the consultation provided for the judgment of the proposals a single list of criteria applicable to all solutions contained in the offers of candidates;
8. Whereas if the SA Test supports, on the one hand, that the rating criteria provided for by the consultation regulation were not adapted to "solution 2" and, on the other hand, that the latter solution was not in accordance with the "standard CERTU standard" referred to in the special technical clauses, the plea does not contain any particulars enabling it to be assessed and, in particular, not the production of the standard ignorance is invoked;
9. Considering that it follows from all the foregoing that the conclusions presented by the SA Test must be rejected for the purpose of annulment of the proceedings at issue, without it being necessary in any event to rule on the conclusions that the urban community be ordered to communicate the analysis report drawn up by the tender commission;
10. Considering that it is appropriate, in the circumstances of the case, to charge the SA Test the sum of 4 000 euros to be paid to the urban community of Greater Dijon under the provisions of Article L. 761-1 of the Code of Administrative Justice;
Article 1: The order of the Administrative Court of Dijon of 11 June 2015 is set aside in so far as it annulled the procedure for awarding the contract at issue.
Article 2: The application made by the SA Test before the Judge pre-contractual is rejected.
Article 3: The SA Test will pay to the urban community of Greater Dijon a sum of 4,000 euros under the provisions of Article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the urban community of Greater Dijon and SA Test.