Notation des offres sur la base d'une caractéristique technique : obligation du pouvoir adjudicateur d'exiger des justificatifs

Scoring of tenders on the basis of a technical characteristic: obligation of the contracting authority to require supporting documents

by gmorales on 19 December 2015 | Category: Pre-contractual & Contractual referral
Notation des offres sur la base d'une caractéristique technique : obligation du pouvoir adjudicateur d'exiger des justificatifs Notation des offres sur la base d'une caractéristique technique : obligation du pouvoir adjudicateur d'exiger des justificatifs

Notation des offres sur la base d'une caractéristique technique : obligation du pouvoir adjudicateur d'exiger des justificatifs CE 9 November 2015, Coaches of the Isle of Beauty, req.no. 392785

Scoring of tenders on the basis of a technical characteristic: obligation of the contracting authority to require supporting documents.

In that case, the Conseil d'Etat considers that, where the contracting authority provides that the rating of tenders will be carried out taking into account a specific technical characteristic, it is incumbent upon it to require the production of supporting documents enabling it to verify the accuracy of the information given by the candidates.

In this case, the consultation documents indicated that the technical merit of tenders would be noted taking into account the possibility of parking vehicles in a covered location. Candidates had to justify this possibility in their technical memorandum because it was a sub-criterion of the technical value of the offers.

However, it appears that the contracting authority did not ask the candidates to produce supporting documents enabling it to effectively check the accuracy of the information provided concerning the parking of the vehicles in a covered place. The Council of State draws the logical consequence that once the contracting authority has foreseen that the value of the tenders will be examined with regard to a particular technical element, it is incumbent upon it to require candidates to produce supporting documents enabling it to check the accuracy of the information given in their technical report. The lack of verification of the supporting documents therefore constitutes a breach of the rules of advertising and competition which it is for the pre-contractual judge to penalize.

Board of state
No. 392785
Mentioned in the tables of Lebon collection
7th / 2nd SSR
Mr François Lelièvre, rapporteur
Mr Olivier Henrard, public rapporteur

Reading of Monday, November 9, 2015

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The company The Roger Ceccaldi Coaches asked the judge of the summary of the administrative court of Bastia, on the one hand, to cancel the decisions of the tender commission of the department of Corse-du-Sud of July 7, 2015 rejecting its offers for lots 127 (Ajaccio-Vico) and 132 (Porto-Ota) of the market passed by the department of Corse-du-Sud for the operation of a school bus service and secondly , to order the department to resume the procurement procedure for two of the lots at the tender review stage.

By an order n ° 1500638 of August 4th, 2015, the judge of summary of the administrative court of Bastia canceled, regarding lot n ° 127, the decision of the commission of call for tenders of June 10th, 2015 declaring unsuccessful the tendering procedure and the subsequent negotiated procedure and, in the case of lot 132, the entire procedure.

By a summary appeal, a supplementary memorial and a reply, registered on 19 August, 1 September and 20 October 2015 at the litigation secretariat of the Conseil d'Etat, the company Autocars de l'Ile de Beauté, winner of both lots in cause, asks the Council of State:

1 °) to cancel this order;
2 °) ruling in summary, to dismiss the application of first instance;
3 °) to charge the company Roger Ceccaldi Autocars the sum of 7 000 euros under the provisions of 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 François Lelièvre, master of petitions,
- the conclusions of Olivier Henrard, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Barthélemy, Matuchansky, Vexliard, Poupot, lawyer of the company Autocars of the Isle of Beauty and to the SCP Delaporte, Briard, Trichet, lawyer of the company Autocars Roger Ceccaldi;

Considering the notes under deliberation, registered on October 23rd, 2015, by the company Autocars Roger Ceccaldi and on October 26th, 2015 by the company Autocars de l'Ile de Beauté;

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 (...) "; that under the terms of the article L. 551-10 of this code: "The persons authorized to initiate the recourse provided for in the articles L. 551-1 and L. 551-5 are those which have an interest to conclude the contract and who are likely to be injured by the breach invoked (...) ";

2. Considering that it is clear from the documents in the file submitted to the judge of the pre-contractual summary that the department of Corse-du-Sud has launched an open tendering procedure for the award of a contract, divided into one hundred and thirty-two lots for the purpose of operating a school bus service; that, by the order contested, the Judge of the pre-contractual summary of the administrative court of Bastia, seized by the company Roger Ceccaldi Autocars and ruling in application of articles L. 551-1 and following of the code of administrative justice, a, d on the one hand, with regard to lot 127 (Ajaccio-Vico), annulled the decision of the tender committee of 10 June 2015 declaring the procedure unsuccessful and the subsequent negotiated procedure initiated by the department, and on the other hand, with regard to lot 132 (Porto-Ota), canceled the entire tender procedure;

The order under appeal in so far as it concerns lot 127:

3. Considering that under 1 ° of I of Article 35 of the Code des Marches Publics: "An offer is unacceptable if the conditions that are laid down for its implementation are in breach of the legislation in force, or if the budgetary appropriations allocated to the market after assessing the need to be met do not allow the contracting authority to finance it "; that the pre-contractual judge has taken into account, in order to determine whether the tenders were unacceptable, the budgetary appropriations allocated to lot 127 of the contract; that, consequently, the company Autocars de l'Ile de Beauté is not justified to maintain that it would have made an error of law by retaining a criterion drawn from the comparison with the financial estimations of the collectivity;

4. Whereas it follows from the statements in the order under appeal that the tender commission decided to declare the procedure unsuccessful on the ground that the tenders received for that lot were unacceptable or irregular; that in particular, both the initial offer of the limited liability company Autocars de l'Ile de Beauté, finally retained, than that of the company The Autocars Roger Ceccaldi, which was rejected, were regarded as unacceptable; that the pre-contractual judge has, however, found that there was no evidence that the offer of the company Roger Ceccaldi Autocars was unacceptable; that consequently, it held that the tender commission had disregarded the provisions of I of I of Article 35 by declaring the procedure of call for tenders unsuccessful; that, moreover, the judge of pre-contractual referred pointed out that this failure had been of nature to injure this company, since: "it was not disputed that the initial offer of the SARL Buses of the Ile de Beauté could not be financed by the contracting authority given the budget appropriations then allocated to the market "; it does not appear from the documents that the company Autocars de l'Ile de Beauté or the department of Corse-du-Sud would have argued before the judge of the interim that this offer was not unacceptable; that the judge was not required to prescribe measures of inquiry for the purpose of determining whether the offer was of such a character; Consequently, the plea alleging that the judge disregarded his office and made an error of law for failure to prescribe such measures can only be dismissed.

The order under appeal as regards lot 132:

5. Whereas, when, in order to fix a criterion for awarding the contract, the contracting authority provides that the value of the tenders will be examined in the light of a specific technical characteristic, it is incumbent upon it to require the production of supporting documents enabling it to verify the accuracy of the information given by the candidates;

6. Considering that it emerges from the statements in the order under appeal, which is not disputed on these points, first of all, that the applicants were asked, inter alia, to specify whether the vehicles would be parked in a covered place, this element constituting a sub-contract. -criterion of the criterion of technical merit and, secondly, that the contracting authority had not asked the candidates, either by the consultation rules or by any other document of the consultation, to produce supporting documents enabling them to effectively monitor the accuracy of the information provided in this regard; that deducing from these circumstances that the contracting authority had breached its obligations of advertising and call for competition, the Judge pre-contractual summary of the administrative court of Bastia did not err in law;

7. Considering that it follows from the foregoing that the company Autocars de l'Ile de Beauté is not justified in seeking the annulment of the order under appeal;

8. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the fact that the Company Roger Ceccaldi Coaches, which is not the losing party, the costs that the company asks, as such, the company Autocars de l'Ile de Beauté; that on the other hand, it is appropriate, in the circumstances of the case, to put at the expense of the company Autocars de l'Ile de Beauté the sum of 3 000 euros to be paid to the company Roger Ceccaldi Autocars under the same provisions;

DECIDE:
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Article 1: The appeal of the company Autocars de l'Ile de Beauté is rejected.
Article 2: The company Autocars de l'Ile de Beauté will pay a sum of 3,000 euros to the company Roger Ceccaldi Autocars in application of the provisions of Article L. 761-1 code administrative justice.
Article 3: This decision will be notified to the company Autocars de l'Ile de Beauté, to the company The Autocars Roger Ceccaldi and the department of Corse-du-Sud.

Summary : Where, in order to fix a criterion for the award of a public contract, the contracting authority stipulates that the value of the tenders shall be examined in the light of a particular technical characteristic, it is incumbent upon it to require the production of supporting documents enabling it to verify the accuracy of the information given by the candidates.