New details on the extent of the pre-contractual judge's review
CE January 20, 2016, CIVIS. req.n ° 394 133
In this case, the Conseil d'Etat gives details of the extent of the pre-contractual judge's review of the pre-contractual summary proceedings, both on the tenderer's offer and on the tax and social security certificates that the latter is supposed to have. communicate to the public purchaser.
Rule 1: Some details on the extent of the pre-contractual judge's review
The Conseil d'Etat recalls the rule according to which it is not for the judge of the pre-contractual summary to decide on the one hand on the appreciation carried by the public purchaser on the value of an offer, on the other hand, on the merits of the different offers.
On the other hand, where it is seized with a means to that effect, the judge hearing the application for interim measures is well qualified to check that the public purchaser has not distorted the content of an offer by disregarding it or by clearly altering it. terms and procedure and the selection of the successful tenderer in breach of the fundamental principle of equal treatment of candidates.
In that case, the Conseil d'Etat considers that, in considering that, in order to unfavorably assess a candidate's tender in view of a criterion for judging tenders, the public purchaser had made "unjustified" corrections to the content. of the tenderer's bid, he did not merely check that the public purchaser had not distorted the content of the tender, but decided on the assessment made by the contracting authority the value of this offer. The nuance is difficult to perceive. In other words, the Conseil d'Etat could not have brought the same solution if, out of excess of zeal or not, the judge of the pre-contractual summary had not used during the drafting of his order, the term "Unjustified" ... so to follow.
Rule n ° 2: confirmation of the pre-contractual judge's review of the production of "valid" tax and social certificates within the time limits set out in the specifications
Article 46 (1) of the Code des Marches Publics requires, whatever the type of procedure envisaged, that the candidate "to whom it is envisaged to award the contract" produces valid tax and social certificates, that is to say, dating from less than 6 months within the deadlines set by the consultation rules. In order for the award of the contract to be considered as consistent with the principle of equality between candidates, the public purchaser must therefore ask the candidate to whom it "considers" to award the contract to produce valid tax and social security certificates. within the deadlines set by the consultation rules before he can definitively confirm his choice and before informing the other candidates of the rejection of their offers.
In this case, the Conseil d'Etat recalls that the judge of the pre-contractual recourse is perfectly competent to verify if the public purchaser did indeed request and obtained from the successful tenderer the totality of the documents envisaged by article 46 of the contract code public.
Board of state
N ° 394133
Mentioned at Lebon collection tables
7th / 2nd SSR
Mr François Lelièvre, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP GARREAU, BAUER-VIOLAS, FESCHOTTE-DESBOIS; SCP FOUSSARD, FROGER, lawyers
Reading of Wednesday, January 20, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company Derichebourg Polyurbaine asked the pre-contractual judge of the administrative tribunal of the Meeting to cancel, on the basis of Article L. 551-1 of the Code of Administrative Justice, the tender procedure launched by the intercommunal community of cities solidarity (CIVIS) for the award of lot No. 1 of a public contract for the collection and disposal of household and similar waste.
By order no. 1500822 of 2 October 2015, the pre-contractual judge of the administrative court annulled the procedure at the stage of the analysis of the offers.
By a summary appeal, a supplementary memorial and a reply, filed on 19 October, 3 November and 29 December 2015 with the litigation secretariat of the Conseil d'Etat, the CIVIS asks the Conseil d'Etat to:
- cancel this order;
- ruling by reference, dismiss the application of the company Derichebourg Polyurbaine;
- to charge the company Derichebourg Polyurbaine the sum of 6,000 euros under the provisions of 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. François Lelièvre, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Garreau, Bauer-Violas, Feschotte-Desbois, lawyer of the intercommunal community of the cities solidarity, and to SCP Foussard, Froger, lawyer of the society Derichebourg Polyurbaine;
Considering the note under advisement, recorded on January 6th, 2016, presented by the company Derichebourg Polyurbaine;
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 Article L. 551-2 of the Code: "I. The judge can order the author of the breach to comply with his obligations and suspend the execution of any decision relating to the award of the contract, unless it considers, in consideration of all the interests likely to be harmed and in particular of the public interest, that the negative consequences of these measures could outweigh their advantages. (...) " that under the terms of article L. 551-10 of the same code: "The persons authorized to initiate the recourse provided for in articles L. 551-1 and L. 551-5 are those who have an interest in concluding the contract and who are likely to be injured by the breach invoked (...) ";
2. Considering that it does not belong to the judge of the pre-contractual summary, which must only decide on the respect, by the contracting authority, of the obligations of advertising and putting in competition to which is the subject of the conclusion of a contract, of decide on the assessment of the value of an offer or the merits of the various offers; whereas it is for it, however, when it is seized with a means to that effect, to verify that the contracting authority has not distorted the content of an offer by disregarding or clearly altering the terms and conditions; proceeded to the selection of the successful tenderer in breach of the fundamental principle of equal treatment of candidates;
3. Considering that to cancel, at the stage of the analysis of the offers, the procedure of award of lot n ° 1 of the public contract for the collection and evacuation of household and similar waste launched by the intercommunal community of the cities of solidarity (CIVIS) , the judge of the administrative court of Reunion held that, to assess unfavorably the offer of the company Derichebourg Polyurbaine with regard to the criterion of "coherence between the decomposition of the global price and flat rate and the methodological note of the candidate", the CIVIS had made unjustified corrections to the count of the jobs that the company intended to assign to the performance of the contract; that in doing so, he did not confine himself to verifying that the CIVIS had not distorted the content of the company's offer, but decided on the assessment made by the contracting authority of the value this offer; it follows from what has been said above that he committed an error of law; that, consequently, the CIVIS is justified, without it being necessary to consider the other grounds of the appeal, to ask for the cancellation of the order contested;
4. Considering that it is necessary, in application of the provisions of Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interim proceedings initiated;
5. Considering, firstly, that under Article 5 of the Code des Marches Publics: "The nature and extent of the needs to be satisfied are precisely determined before any call for competition"; and that under Article 72 of the same Code: "The contracting authority may award a contract in the form of a conditional tranche market / The conditional tranche market comprises a firm tranche and one or more conditional tranches. The contract defines the consistency, the price or the terms and conditions for determining each tranche, the fixed tranche benefits must constitute a coherent whole, and the benefits of each conditional tranche, taking into account benefits from all previous installments. ";
6. Whereas the company Derichebourg Polyurbaine argues that the candidates were not able to know the nature of the benefits to be achieved with certainty since, under Article 3.3 c) of the consultation rules, the conditional unit No. 1 which could be strengthened was intended to replace the firm tranche, it follows from the terms of Article 3.1 of this Regulation that none of the benefits provided for in the firm tranche, which consists of the collection of waste " "door-to-door", should not be removed in case of consolidation of the conditional phase, which concerns the collection of waste "at the terminals of voluntary contribution"; that, moreover, contrary to what Derichebourg Polyurbaine maintains, the consistency and the methods of execution of the conditional tranche n ° 1 are sufficiently defined both in article 3 of the consultation regulation and in the terms of the clauses special techniques, in particular Articles 9 and 10 and Annexes V and VII; Consequently, the plea alleging that the CIVIS has failed to comply with the provisions of Articles 5 and 72 of the Code des Marches Publics by not defining the requirements corresponding to the firm and conditional tranches must be rejected.
7. Considering, secondly, that, as stated above, it is not for the pre-contractual judge to rule on the manner in which CIVIS appreciated the offer of Derichebourg Polyurbaine. with regard to the criterion of "consistency between the breakdown of the global and flat price and the methodological note of the candidate"; whereas, moreover, if the CIVIS made corrections to the count of the jobs which the company intended to assign to the execution of the contract, it is because of the peculiarities of the presentation of its offer; In this way, the plea that CIVIS has implemented different methods of assessing the tenders for the successful tenderer and the applicant company and thus infringed the principle of equal treatment must be rejected.
8. Considering, thirdly, that it follows from the investigation that the members of the group of undertakings awarded the contract for lot 1, the company HCE and the SEMRRE, have produced all the documents and attestations mentioned in Article 46 of the Code des Marches Publics and in Article 4 of Annex 6 to the consultation rules; It follows from this that the plea that in attributing the contract to this group, the CIVIS failed to meet its obligations of advertising and competition must, in any case, be ruled out;
9. Considering that it follows from all the foregoing, without it being necessary to rule on the objections of inadmissibility opposed by the CIVIS, that the society Derichebourg Polyurbaine is not justified to ask the cancellation of the contentious proceedings;
10. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of an amount to CIVIS, which is not the losing party in the case. this proceeding; whereas, on the other hand, under the same provisions, the company Derichebourg Polyurbaine, on the one hand, must pay the company HCE a sum of € 1,500 for the procedure the administrative tribunal of Réunion, and, on the other hand, the payment to CIVIS of 4,500 euros for the proceedings before this court and the Conseil d'Etat;
Article 1: The order of 2 October 2015 of the judge of the Administrative Court of La Reunion for summary proceedings is set aside.
Article 2: The request of the company Derichebourg Polyurbaine is rejected.
Article 3: The company Derichebourg Polyurbaine will pay, on the one hand, a sum of 4,500 euros to the CIVIS and, on the other hand, a sum of 1,500 euros to the company HCE under the provisions of Article L. 761-1 of the administrative justice code. The same conclusions presented by Derichebourg Polyurbaine are rejected.
Article 4: This decision will be notified to the intercommunal community of the cities solidarity and the company Derichebourg Polyurbaine.
Copy will be sent for information to the society of mixed economy Meeting Recyclage Environment and the company HC Environment.
It is not the task of the pre-contractual judge who has only to rule on the contracting authority's compliance with the disclosure and competitive bidding requirements for the awarding of a contract, to decide on the appreciation of the value of an offer or the respective merits of the various offers. On the other hand, where it has before it a means to verify that the contracting authority has not distorted the content of an offer by clearly disregarding or altering the terms and process the selection of the successful tenderer in breach of the fundamental principle of equal treatment of candidates.