Obligation to control the technical and financial capacities of candidates
Impossibility of selecting a candidate who has not justified his technical and financial capacities and prohibition for an architect to intervene both as prime contractor of the public purchaser and adviser of a candidate.
Rule n ° 1: The public purchaser is required to control the technical and financial capacities of the candidates
The Council of State recalls the rule according to which the contracting authority "must control the professional, technical and financial guarantees of the candidates for the award of a public contract" (EC 26 March 2008, Communauté urbaine de Lyon, req.n ° 303779). In the event of litigation, it is up to the public purchaser to demonstrate that he has really been able to control the technical and financial capacities of the candidates and to produce the proof of this control.
The fact of noting an offer which should never have been examined by the Tender Committee since its application had previously to be rejected is such as to distort competition and equal treatment between the candidates (CAA Versailles 5 February 2009, Sté SEE SIMEONI, req.n ° 07VE02058). This is the reason why the Council of State has already had the opportunity to recall that an ousted candidate is automatically aggrieved by the "irregular" admission of a candidacy regardless of its ranking (CE 11 April 2012, Syndicat ODY 1218 NEWLINE LLOYD'S London, Req. No. 354652).
Rule 2: the public purchaser is bound to preserve the equality of candidates
In this case, the development operation consisted of the construction of 240 dwellings. The building permit application files required for the operation and on the basis of which the bids were to be prepared, were drawn up by an architectural firm, the project manager of the municipality. However, the documents in the file of the merits showed that the prime contractor also acted as counsel for the company declared successful, including during the negotiation phase of the offers. The Conseil d'Etat considers that such a situation constitutes a breach of equality between the candidates.
Board of state
N ° 386578
7th / 2nd SSR
Mrs Charline Nicolas, rapporteur
Mr Olivier Henrard, public rapporteur
SCP COUTARD, MUNIER-APAIRE; SCP CELICE, BLANCPAIN, SOLTNER, TEXIDOR; SCP GASCHIGNARD, lawyer (s)
Reading of Thursday, November 12, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The joint-stock company Gardienne Mixed Economy (SAGEM) has asked the administrative court of Toulon to cancel the concession agreement of the development operation Couvent Lices Hospital of August 22, 2011 attributed to the company Kaufman and Broad Provence by the municipality from Saint-Tropez. By a judgment n ° 1102805 of July 17, 2013, the administrative court of Toulon rejected this request.
By a judgment n ° 13MA03008 of October 27, 2014, the Administrative Court of Appeal of Marseille rejected the appeal formed by SAGEM against this judgment.
By a summary appeal, a supplementary memorial and reply briefs filed on 19 December 2014, 17 March, 6 July, 10 September and 17 September 2015 to the Litigation Secretariat of the Council of State, SAGEM asks 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 company Kaufman and Broad Provence the payment of the sum of 5,000 euros under the provisions of Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the code of town planning;
- the code of administrative justice;
After hearing in open session:
- the report of Mrs Charline Nicolas, auditor,
- the conclusions of Olivier Henrard, public rapporteur;
1. Considering that it appears from the documents in the file submitted to the judges of the substance that, by a notice of tender published December 23, 2010, the town of Saint-Tropez has initiated a consultation procedure for the award a development concession covering the urban restructuring of three sectors located in the city center, the convent, the slab of the Lices and the old hospital; that after negotiations, the offer of the company Kaufman and Broad Provence was retained and the mayor of the municipality of Saint-Tropez was authorized, by a deliberation of the city council of 2 August 2011, to sign the concession agreement with that company; that this signature occurred on August 22, 2011; that the public limited company of mixed economy (SAGEM), whose offer was rejected, asked the cancellation of the concession of development before the tribunal administrative of Toulon, which, by a judgment of July 17, 2013, has rejected his request; appealed by SAGEM, Marseille Administrative Court of Appeal, by a judgment of October 27, 2014, confirmed this judgment; that SAGEM appeals in cassation against this judgment;
2. Considering that under Article L. 300-4 of the Urban Planning Code, in its version applicable to the dispute: "The State and the local authorities, as well as their public institutions, may concede the realization of the planning operations provided for in this Code to any person having a vocation to do so. The allocation of development concessions is submitted by the grantor to an advertising procedure allowing the presentation of several competing offers, under conditions laid down by decree of the Conseil d'Etat. (...) "; that under Article R *. 300-8 of the same code: "The licensor chooses the concessionaire taking into account in particular the technical and financial capacities of the candidates and their ability to conduct the planned development operation, after having freely engaged any useful discussion with one or more persons having submitted a proposal ";
3. Considering, firstly, that it follows from the aforementioned provisions that the grantor must take into account the technical and financial capacities of the candidates for the development operation; that if he has the option to ask a candidate, in compliance with the principle of equality, to complete his file so that he can justify his abilities, as well as provided for in Article 5 of the Rules of Procedure. consultation of the litigious operation put in the file of the judge of the bottom, it can not legally select the offer of a candidate not having justified his capacities; that consequently, judging that the grantor could select a candidate who has not justified its technical and financial capabilities, the Marseilles Administrative Court of Appeal made an error of law;
4. Considering, secondly, that it appears from the documents in the file submitted to the judges of the merits that the object of the development operation was the construction of 240 dwellings; that the building permit application files required for the operation on the convent sector, and on the basis of which the offers were to be drawn up, were drawn up by the architecture firm Vieillecroze, prime contractor of the commune of Saint Tropez ; It is also apparent from the documents in the file submitted to the court that the same contractor was the adviser of the awarded company, including during the negotiation phase of the tenders during which building permits were still in force. instruction; that consequently, by discarding the ignorance of the principle of equality between the candidates on the ground that all the candidates had received communication of the building permits, the Administrative Court of Appeal of Marseilles made an error of right;
5. Considering, thirdly, that it appears from the documents in the file submitted to the trial judge that the consultation regulation stated that "the provisional program authorizes the construction of approximately 240 dwellings divided by half at both sites, for two thirds in low-cost rental housing and one-third in open-ownership housing "; that the program document of the concession agreement stipulated, on page 6, that "the prime objective is to create a rental offer located at around 20 % below the market price. It appears a real need in intermediate rental housing unregulated, between 10 and 13 euros / m2 excluding charges. But also a demand at the margin for the placing on the market of an offer between 8 and 10 euros / m2 excluding charges "; that contrary to these prescriptions, the deliberation of the municipal council of Saint-Tropez of August 2nd, 2011 by which it authorized the mayor to sign the concession of development with the company Kaufman and Broad Provence, indicated that the offer presented by the latter envisaged the construction of "77 housing in PLI (rent of 11 euros / m2), 102 housing in PLS (declination of rents in PLAI (20 %), PLUS (60 %) and PLS (20 %), from 5 to 9.5 euros / m2), 85 units for free accomodation, and 10 housing units in "; that if this offer was thus in keeping with the breakdown between the number of rental housing units and the number of accomodation dwellings indicated in the consultation regulations, it nevertheless revealed the construction of social housing types "PLAI" and "PLUS", representing more than half of the rental units, not provided for in the consultation documents; that for such social housing not foreseen during the call for competition, the builders benefit from important public subsidies and privileged borrowing rates; that, furthermore, it is also apparent from the documents in the file submitted to the court that the tender selected provided for an additional density of approximately 2,000 m2 on the site of the former hospital compared with the project presented in the program document, ie as a result of this increase of 10 % of the surface, as well as 90 additional parking places for a number initially foreseen in the documents of the consultation of 533; that, consequently, in considering that these modifications made at the stage of the signature of the agreement had not substantially modified the economy of the project put to the competition and had not, thus, infringed the rules of advertising and competition, the court, without expressly pronouncing on the argument relating to the modification, in the course of execution, of the object of the contract by reason of the increase in the net surface area of the concession and the addition of a new parking level, incorrectly qualified the facts submitted to him;
6. Considering that it follows from the above that the judgment of the Administrative Court of Appeal of Marseille of 27 October 2014 must be annulled; that in the circumstances of the case, it is appropriate to refer the case to the Administrative Court of Appeal of Lyon;
7. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of an amount in this respect to SAGEM, which is not, in the present case, the losing party; that on the other hand, it is necessary, in the circumstances of the case, to put at the charge of the company Kaufman and Broad Provence the sum of 4 000 euros under these same provisions;
Article 1: The judgment of the Administrative Court of Appeal of Marseille of October 27, 2014 is canceled.
Article 2: The case is referred to the Administrative Court of Appeal of Lyon.
Article 3: The company Kaufman and Broad Provence will pay to SAGEM a sum of 4,000 euros under the provisions of Article L. 761-1 code administrative justice.
Article 4: The conclusions presented by the company Kaufman and Broad Provence and the municipality of Saint-Tropez under the provisions of Article L. 761-1 code administrative justice are rejected.
Article 5: This decision will be notified to the public limited company of mixed economy, the municipality of Saint-Tropez, the company Kaufman and Broad Provence and the company Kaufman and Broad Promotion 3.