Marchés publics : la preuve de la détention des capacités des entités liées au candidat doit être la plus large possible

Public procurement: the proof of the holding of the capacities of entities related to the candidate must be the widest possible

by gmorales on 12 February 2016 | Category: Public markets
Marchés publics : la preuve de la détention des capacités des entités liées au candidat doit être la plus large possible Marchés publics : la preuve de la détention des capacités des entités liées au candidat doit être la plus large possible

Marchés publics : la preuve de la détention des capacités des entités liées au candidat doit être la plus large possible CJEU 14 January 2016, Otas Celtnieks SIA Aff.C-234/14
A candidate for a public contract is free to choose, on the one hand, the legal nature of the links which he intends to establish with the other entities for which he asserts the financial, technical and professional capacities for the execution of a contract. determined market (grouping and / or subcontracting) and, on the other hand, the method of proof of the existence of these links.

Rule 1: the public purchaser has the obligation to control the capacities of the candidates

The awarding of public contracts is always done after verification of the financial, technical and professional capacities of the non-excluded economic operators in accordance with Article 45 of the Public Procurement Code and the Decree of 28 August 2006 adopted for its application.

A public purchaser must therefore check the professional, technical and financial guarantees of the candidates for the award of a public contract (EC 12 November 2015, SAGEM, Req.No. 386578, EC 26 March 2008, Urban Community of Lyon, Req. No. 303779). As such, he can not limit his control to the completeness of the application file since it is his responsibility to verify the intrinsic quality of the documents produced by the candidates to demonstrate their professional, technical and financial capacities to perform the services. (CE 29 April 2011, Minister of Justice, Minister of Justice and Freedoms, No. 344617).

This control is necessary because in the event of litigation, it will be up to the public purchaser to demonstrate that he really was able to control the technical and financial capacities of the candidates as well as the justifications for this control (EC 17 September 2014, Delta Process Company, # 378722) regardless of whether the successful candidate is a newly created company (May 9, 2012, Municipality of Saint-Benoit, # 359455).

Rule n ° 2: a candidate who does not have sufficient capacities is free to assert the capacities of other entities either by responding in group or by presenting a subcontractor

The rules of public procurement do not require that the economic operator concluding a contract with a public purchaser be able to carry out directly, with his own resources, the services covered by the subject of the contract. It is sufficient that he is able to execute the service in question, by providing the necessary guarantees for that purpose. This is the reason why both the legislation in force and the case-law admit to bidding or to apply for a public contract an economic operator which, in view of the conditions set out in the specifications, considers itself capable of ensuring the execution of this contract, directly-heard individual candidate or member of a group- or indirectly, by resorting to subcontracting.

When, in order to demonstrate its financial, economic, technical and / or professional capacity to be eligible to participate in a tendering procedure, a company decides to disclose the capabilities of organizations or it is directly or indirectly related, whatever the legal nature of these links, it is incumbent on it to prove that it has "actually" the means of these organizations or companies which do not belong to it own and which are necessary the performance of the contract (ECJ 2 December 1999, Holst Italia, C 176/98, paragraph 29).

It is then for the public purchaser to verify the tenderer's ability to perform a specific contract. The purpose of this verification is, in particular, to provide him with the assurance that the tenderer in question will in fact have the use of the means of any kind which he invokes during the entire period of execution of the contract. In its judgment of 14 January 2016, Otas Celtnieks SIA Aff.C-234/14 the Court of Justice considers that it follows from Articles 47 (2) and 48 (3) of Directive 2004/18 that the tenderer shall remain free to choose, on the one hand, the legal nature of the links it intends to establish with the other entities whose capacity it asserts for the purpose of performing a specific contract and, on the other hand, the proof of the existence of these links.

Rule 3: the candidate is free to prove the provision of the capacities of other entities by any means

Indeed, for the Court of Justice, if Articles 47 (2) and 48 (3) of Directive 2004/18 (Article 45 of the Public Procurement Code in its current version at national level) indicate that 'by example, the production of the commitment of other entities to make available to the tenderer the necessary means constitutes an acceptable mode of proof, these provisions can in no way exclude other modes of proof.

As the Advocate General points out in his Opinion in that case, those provisions expressly provide that it is 'only by way of example' that the production of the undertaking by other entities to make available to the tenderer the means necessary for performance of the contract constitutes acceptable evidence that he will actually have those means. As a result, these provisions do not in any way preclude the tenderer from establishing "otherwise" the existence of the links which bind him to the other entities whose capacity he asserts for the purposes of the proper performance of the contract to which he is tendering.

In this case, a contracting authority required tenderers who wished to rely on the capacities of other entities to establish with those entities links of a specific legal nature, so that only those particular links were likely, in the view of the the contracting authority, to prove that it did in fact have the necessary means to carry out the performance of the contract services. Specifically, the contracting authority required that bidders enter into a partnership agreement with these entities or create a partnership with these entities. In so doing, the specifications provided for only two modalities allowing the tenderers to establish that they have the means of other entities for the proper performance of the services of the market, to the exclusion of any other mode of proof. The Court considers that such a restriction is unlawful in that it obviously renders the provisions of Articles 47 (2) and 48 (3) of Directive 2004/18 meaningless. The public procurement rules therefore preclude a contracting authority from, in the framework of a public procurement procedure, imposing on a tenderer who asserts the capacities of other entities the obligation to before entering into the contract, enter into a partnership agreement with these entities or create a partnership with them. The latter must be free to prove by any means that he has the capacities of the entities he intends to use.

Rule 4: The public purchaser must be able to justify the form of the grouping imposed to perform the contract

This case is also interesting in that it recalls that a public purchaser can not impose any type of group for the performance of market services: the form of the grouping must be justified by the subject of the contract and the nature of the services to be performed.

As a reminder, in the case of a joint group, each co-contractor is responsible for the services entrusted to him. In the case of a solidarity group, each co-contractor is financially committed for the entire market and must compensate for any possible failure of its partners.

Article 51 of the Code des Marches Publics and Article 4 (2) of Directive 2014/18 indicate that contracting authorities may not require groups of economic operators to have a specific legal form to participate in the procedure. On the other hand, they may require that the grouping chosen may be required to assume a specific legal form if the contract has been awarded to it, but only to the extent that such transformation is necessary for the proper performance of the contract services.

In this case, the Advocate General takes the opportunity to recall that this obligation to assume a particular legal form after the award of the contract "constitutes an exceptional requirement which is only imposed when it is objectively necessary and respect for the principle of proportionality ".

Economic operators participating in a market procedure are therefore free to choose the mode of cooperation with other entities to satisfy the requirements of the capacities required by the public purchaser (grouping or subcontracting) just as they are free from the mode to prove to the buyer that they will have the capabilities of other entities.

JUDGMENT OF THE COURT (First Chamber)
January 14, 2016 (*)

THE COURT (first chamber),

Stop

 

1 The reference for a preliminary ruling concerns the interpretation of Directive 2004/18 / EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, p.114).

2 This claim was made in the context of a dispute between Ostas Celtnieks SIA (hereinafter Ostas Celtnieks) and Talsu novada pašvaldība (local authority of Talsi County) and Iepirkumu uzraudzības birojs (Office Public Procurement Surveillance) concerning the requirements laid down in the specifications for a procedure for the award of a public works contract.

The legal framework

Union law

3 Recital 32 of Directive 2004/18 is worded as follows:
"In order to promote the access of small and medium-sized enterprises to public procurement, provision should be made for subcontracting. "

4 Article 7 of that directive lays down the amounts from which the rules for the coordination of procedures for the award of public works contracts, public works contracts and public service contracts are to be made. With regard to public works contracts, Article 7 (c) of that directive sets the threshold at EUR 5 186 000.

5 Article 44 of the directive provides:
1. The award of the contracts shall be made after verification of the ability of the non-excluded economic operators [...], carried out by the contracting authorities in accordance with the criteria relating to economic and financial capacity, knowledge or professional and technical capacities referred to in Articles 47 to 52 [...]
2. Contracting authorities may require minimum levels of capability, in accordance with Articles 47 and 48, which candidates and tenderers must satisfy.
The scope of the information referred to in Articles 47 and 48 and the minimum levels of capacity required for a specific contract must be related and proportionate to the subject of the contract.
[...] "

6 Article 47 of Directive 2004/18, entitled 'Economic and financial capacity', provides in paragraph 2:
'An economic operator may, where appropriate and for a specific contract, rely on the capacities of other entities, irrespective of the legal nature of the links between itself and those entities. In that case, he must prove to the contracting authority that he will have the means necessary, for example, by producing the undertaking of those entities for that purpose. "

7 Article 48 of that directive, entitled 'Technical and / or professional capacity', provides in paragraph 3:
'An economic operator may, where appropriate and for a specific contract, rely on the capacities of other entities, irrespective of the legal nature of the links between itself and those entities. In that case, he must prove to the contracting authority that, for the performance of the contract, he will have the means necessary, for example, by producing the undertaking of those entities to make available to the economic operator the necessary means. "
Latvian law

8 It is apparent from the reference for a preliminary ruling that Articles 41 (3) ("Economic and financial capacity") and 42 (3) ("Technical and / or professional capacity") of the Law on Public Procurement (Publisko iepirkumu likums, Latvijas Vēstnesis, 2006, No 65), which transposes Directive 2004/18 into Latvian law, provide that the tenderer may, where necessary for the performance of a specific contract, rely on the other entrepreneurs, irrespective of the legal nature of the links between them. In this case, the tenderer must prove to the contracting authority that he will have the necessary means by producing confirmations or agreements from these contractors concerning the performance of the contract.

9 The basic rules of a partnership agreement are defined in Chapter 16 of the Civil Code, while the conditions imposed on economic operators for the creation and operation of a partnership appear in Title IX of the French Commercial Code. .

The dispute in the main proceedings and the question referred for a preliminary ruling

10 As is clear from the file submitted to the Court, the local authority of the Talsi department launched, in November 2011, a procedure for the award of a public works contract for the improvement of road infrastructures in order to to facilitate access to the city of Talsi (hereinafter the "relevant market").

11 Point 9.5 of the tender specifications relating to that procedure provided:
"[...] in the event that a bidder asserts the capacities of other contractors, he mentions all these contractors and proves that he will have the necessary means. If it is decided to conclude with this tenderer, he must, before concluding the contract, conclude a partnership agreement with these contractors and communicate the said agreement to the contracting authority. [This agreement] should include:

  1. a clause whereby each separately and jointly and severally is (are) responsible for the performance of the contract;
  2. [the designation of the] main economic operator, who will have full powers to sign the contract and will direct the execution thereof;
  3. the description of the part of the work to be done by each participant;
  4. the volume, expressed as a percentage, of the work to be done by each participant.

The conclusion of a partnership agreement may be replaced by the creation of a partnership. "

12 Ostas Celtnieks challenged the validity, inter alia, of that section 9.5 of the specifications before the Office for the Supervision of Public Contracts. However, by a decision of 13 February 2012, the latter rejected the arguments raised by Ostas Celtnieks in support of its complaint by considering that, under that point, the contracting authority had legitimately specified the manner in which the tenderer was required to to establish that he had the necessary means to carry out the execution of the relevant contract.

13 Ostas Celtnieks brought an action against that decision before the Administratīvā rajona tiesa (District Administrative Court) which, by a decision of 7 May 2013, allowed it. In its decision, that court noted in particular that, with regard to point 9.5 of the tender specifications, it was not apparent from the Law on Public Contracts or from Directive 2004/18 that the contracting authority could impose on a tenderer the obligation to make a commitment to enter into a partnership agreement with the other entities whose capacity it asserts to perform the contract in question and to require the tenderer to enter into such an agreement or to create a partnership with such entities entities.

14 This decision was the subject of cassation proceedings brought by the local authority of the Talsi department and the Public Procurement Office before the Augstākā tiesa (Supreme Court). In support of their actions, those authorities claim, inter alia, that the requirements of point 9.5 of the tender specifications are justified by the need to reduce the risk of non-performance of the relevant market.

15 The referring court considers, in essence, that, for the purpose of awarding a public contract, the contracting authority must be able to verify the tenderer's capacity to perform the contract in question. It nevertheless wonders whether, to that end, Directive 2004/18 authorizes the contracting authority to require tenderers to conclude a partnership agreement or a partnership agreement with the other contractors whose capacity they support in support of their bid. own application, or whether these bidders are free to choose how they will involve the participation of these other contractors in the performance of the contract.

16 In those circumstances, the Augstākā tiesa (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
Is it appropriate to interpret the provisions of Directive 2004/18 in the sense that, in order to reduce the risk of non-performance of a contract, they allow the inclusion in a specification of a rule according to which, if it is decided to award the contract with a tenderer who asserts the capacities of other contractors, he is required, before the award of the contract, to conclude with these contractors a partnership agreement (including the points indicated in the specifications) or to create with them a partnership? "

The question referred

Introductory remarks

17 It is important to note at the outset that, while assuming that Directive 2004/18 is applicable in the context of the dispute in the main proceedings, the order for reference contains no evidence to show whether the value of the market concerned reaches the relevant threshold of application laid down in Article 7 (c) of that Directive.

18 In reply to a question put by the Court at the hearing, the Latvian Government nevertheless stated that the contract in question was a works contract worth approximately EUR 3 million, namely a amount less than said application threshold.

19 Moreover, according to that Government, the provisions of the Law on Public Procurement also apply to works contracts, such as the relevant market, of an amount lower than the threshold laid down in Directive 2004/18.

20 In that regard, it is important to recall that, as the Court has already held, the interpretation of the provisions of a Union act in situations falling outside the scope of that act is justifies when such provisions have been made directly and unconditionally applicable to such situations by national law, in order to ensure identical treatment for those situations and those falling within the scope of that act (Generali-Providencia Biztosító , C 470/13, EU: C: 2014: 2469, paragraph 23 and the case-law cited).

21 It follows from the foregoing that, subject to the checks to be made by the referring court and in order to provide it with a useful answer to the resolution of the dispute in the main proceedings, the question referred for a preliminary ruling must be examined.

The question referred

22 By its question, the national court asks, in essence, whether Articles 47 (2) and 48 (3) of Directive 2004/18 must be interpreted as precluding a contracting authority may, in the context of a public procurement procedure, require a tenderer who asserts the capacities of other entities to conclude, with the award of the contract, an agreement with those entities partnership agreement or to create with them a partnership.

23 In order to answer that question, it should be recalled that, in accordance with the settled case-law of the Court, Articles 47 (2) and 48 (3) of Directive 2004/18 recognize the right of every economic operator to assert, for a particular contract, the capabilities of other entities, 'irrespective of the nature of the links between itself and those entities', provided that it is demonstrated to the contracting authority that the tenderer will have the means to those entities which are necessary for the performance of the contract (see, to that effect, Swm Costruzioni 2 and Mannocchi Luigino, C 94/12, EU: C: 2013: 646, paragraphs 29 and 33).

24 Such an interpretation, as the Court has already held, is consistent with the objective of opening public contracts to the widest possible competition pursued by the directives in this respect for the benefit of not only economic operators but also also contracting authorities. Moreover, it is also likely to facilitate the access of small and medium-sized enterprises to public contracts, which is also the aim of Directive 2004/18, as stated in recital 32 thereof (Swm Costruzioni 2 and Mannocchi Luigino, C 94/12, EU: C: 2013: 646, paragraph 34 and the case-law cited).

25 Where, in order to demonstrate its financial, economic, technical and / or professional capacity in order to be eligible to participate in a tendering procedure, a company reports on the capacity of bodies or undertakings to which it is directly or indirectly related, whatever the legal nature of these links, it is incumbent upon it to prove that it has "effectively" the means of those organizations or enterprises which do not belong to it and which are necessary for the performance of the contract (see, to that effect, Holst Italia judgment, C 176/98, EU: C: 1999: 593, paragraph 29 and the case-law cited).

26 In that regard, it should be noted that, in accordance with Article 44 (1) of Directive 2004/18, it is for the contracting authority to verify the tenderer's ability to perform a contract determined. The purpose of this verification is, in particular, to give the contracting authority the assurance that the tenderer will in fact have the use of all the means he avails of during the period covered by the contract (see, by analogy, Holst Italia, C 176/98, EU: C: 1999: 593, item 28).

27 In the context of that review, Articles 47 (2) and 48 (3) of Directive 2004/18 make it impossible to presume that such a tenderer has the means necessary for the performance of the contract or not. all the more so, to exclude a priori certain modes of proof (see, by analogy, Holst Italia judgment, C 176/98, EU: C: 1999: 593, paragraph 30).

28 It follows that the tenderer is free to choose, on the one hand, the legal nature of the links he intends to establish with the other entities whose capacity he asserts for the purpose of performing a specific contract and, on the other hand, the mode of proof of the existence of these links.

29 Moreover, as the Advocate General observes in point 43 of his Opinion, Articles 47 (2) and 48 (3) of Directive 2004/18 expressly provide that only for example, the production of the commitment of other entities to make available to the tenderer the means necessary for the performance of the contract is acceptable proof that he will actually have those means. Therefore, these provisions do not in any way preclude the tenderer from otherwise establishing the existence of links with other entities whose capacity he asserts for the purposes of the proper performance of the contract to which he is tendering.

30 In the present case, the local authority of the Talsi department, as contracting authority, imposes on a tenderer, namely Ostas Celtnieks, who asserts the capacity of other entities for the performance of the relevant contract, d. establish with those entities links of a precise legal nature, so that only those particular links are likely, in the view of the contracting authority, to prove that the successful tenderer does indeed have the necessary means to carry out the execution of this walk.

31 In accordance with point 9.5 of the tender specifications, the contracting authority requires the tenderer to enter into a partnership agreement with those entities before the award of the public contract or to establish a partnership with them.

32 Point 9.5 of the tender specifications therefore provides for only two procedures allowing the tenderer to establish that he has the means necessary for the performance of the contract in question, to the exclusion of any other means of proof of the existing legal relationship between this tenderer and the entities whose capacity he asserts.

33 In those circumstances, a rule such as that laid down in point 9.5 of the specifications clearly renders the provisions of Articles 47 (2) and 48 (3) of Directive 2004/18 meaningless.

34 In the light of the foregoing, the answer to the question referred is that Articles 47 (2) and 48 (3) of Directive 2004/18 must be interpreted as precluding that a contracting authority may, within the framework of the specifications for a public procurement procedure, impose on a tenderer who asserts the capacities of other entities the obligation, before the award of the contract, to enter into a partnership agreement with these entities or create a partnership with them.

Costs

35 Since the proceedings are, in so far as the parties to the main action are concerned, an action brought before the national court, the decision on costs is a matter for that court. The costs incurred in submitting observations to the Court, other than those of the said parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:

Articles 47 (2) and 48 (3) of Directive 2004/18 / EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and services, must be interpreted as precluding a contracting authority from imposing on a tendering tenderer, in the context of the specifications for a public procurement procedure, the ability of other entities to enter into a partnership agreement with these entities prior to the awarding of the contract or to establish a partnership with them.