Public procurement: new details on the communicable nature of the BPU of a public contract
CE May 2, 2016, Société Toffolutti req.nr 381635
In a judgment of 2 May 2016, Société Toffolutti, the State Council recalls that public procurement and all related documents are administrative documents that must be communicated to any person who requests them, subject to the secrets protected by law. Thus, depending on the case, the BPU prices of a public contract can be considered as an essential component of the successful bidder's commercial strategy and justify its refusal of disclosure in the name of industrial and commercial secrecy.
Rule No. 1: Procurement and all related documents are administrative documents within the meaning of the law
Articles L. 311-1 to L. 311-6 of the Code of Relations between the Public and the Administration are regarded as administrative documents, public contracts and all documents relating thereto, including documents relating to the content of the offers. These provisions apply to all public purchasers subject to the order n ° 2015-899 of 23 July 2015 relating to public contracts.
Rule 2: Administrative documents are available to anyone who requests them regardless of their quality
Public purchasers subject to the order n ° 2015-899 of 23 July 2015 relating to public contracts are therefore obliged to communicate public contracts and all the documents relating thereto to any person who requests it, whether it is an unsuccessful candidate or any natural or legal person even those who have not participated in the procedure of advertising and call for competition and that without being required to justify a quality or of particular interest.
Rule 3: this communication is only binding on "completed" documents and on the basis of respect for the secrecy of business
This disclosure obligation applies only to completed documents, ie, from the moment the public contract is signed and subject to the condition that the tender documents requested are not likely to undermine the contract. industrial and commercial secret.
Thus, in the event of litigation relating to the communication of such documents, it is up to the administrative judge to examine, on a case-by-case basis, whether, by themselves, the information contained in the documents claimed may infringe industrial and commercial secrecy , by affecting the competition between economic operators, and thus hinder this communication in application of the provisions of Articles L. 311-1 to L. 311-6 of the Code of relations between the public and the administration.
Rule # 4: The Procurement Bidder's BPU is an administrative document that can be released unless its prices reflect an essential component of its business strategy
In this case, the Conseil d'Etat considers that with regard to the rules of the public commission, the act of engagement and the overall price of the offer as well as the services proposed by the awarded company must be regarded as documents and information that can be released
On the other hand, the Council of State considers that in the specific case of the road asphalt sector, the BPU prices concern the manufacturing processes which constitutes an essential component of its commercial strategy to deduce that the communication of these prices is likely, even at the end of the performance of the contract, having regard to the nature of the contract, to alter the free play of competition between the economic operators and thus to undermine the protection of commercial confidentiality. They are therefore not communicable.
The Council of State does not say that the BPU of a public contract is not communicable "in principle" but that it is not communicable "in principle", which introduces a certain nuance and limits the refusal to only those assumptions where the prices of the BPU are likely to reflect the commercial strategy of the successful tenderer with regard to the specificity of the given competitive market. This nuance is worth noting even though public purchasers will tend to systematically consider that the BPU of a public market always reflects, "in principle" or "by nature", the commercial strategy of an operator. Litigation is likely to multiply on this point. Or out of fear for the latter to engage their responsibility for breach of business secrecy in case of transmission of the BPU.
And especially as economic operators accustomed to responding to public markets could have the idea to indicate in their offers that "the proposed prices reflect the commercial strategy of the company to perform the market benefits" and the turn is played, the buyer or the judge can then be content with this statement declarative, sometimes unfounded, to refuse any communication ... ..
This judgment leaves a number of outstanding issues.
It is first of all permissible to question the stage from which it is possible to consider that the prices of a BPU are likely to constitute an "essential component of the commercial strategy" of an economic operator in a sector. given competitive advantage.
This is an economic and commercial approach that must absolutely be refined except to become general and lose its meaning. The decision of the Council of State gives a first track: the one where prices are likely to reveal indications on manufacturing processes that are, by definition, covered by business secrecy.
That being the case, it is important to remain vigilant in the very specific field of public procurement where business secrecy can be invoked in any case, since each operator may consider that, "in principle", the prices offered are "always" an integral part of their business. commercial strategy. It would be a very dangerous shortcut. Thus, for example, in the area of legal services, those subject to public procurement rules, it would be difficult to explain that the fees proposed may reflect a specific commercial strategy, other than simply that of obtaining the contract of assistance .... the argument to oppose the refusal of communication can not be invoked "in principle" and in all cases and this while the sector of legal services is a highly competitive market ....
It would therefore be welcome that in the near future, the Council of State agrees to further refine its case law and conditions the refusal of communication on the condition for the public purchaser (or via the observations of the awarding of the market questioned by the latter), to be able to justify how the price communication of a BPU is likely to constitute an "essential component of the commercial strategy" of the public tenderer insofar as this condition can motivate a refusal of communication. Otherwise, it should be admitted that the price communication of a BPU can "in principle" be "in principle".
That being the case, the Commission for Access to Administrative Documents will very shortly be led by necessity to define what is meant by "essential component of the commercial strategy" since its referral is a preliminary preliminary before that of the administrative judge for to settle differences of interpretation and that this assessment will depend on its opinion on the disclosure or not of the financial elements claimed. In addition, it will be all the more so as it will have to modify its fact sheet on public markets published on its website which continues to indicate that the tenderer's detailed price offer is legally available as soon as possible. when it is a one-off and non-repetitive market.
In doing so, the CADA will therefore obviously have to decide soon on the notion of "essential component of the commercial strategy" as it has already been able to do so for example about the concept of "punctual" or "Repetitive" public procurement.
It is then permissible to question the question of whether the assessment of the risk of industrial and commercial secrecy will depend on the quality of the applicant or not.
Indeed, is the risk of industrial and commercial secrecy to be assessed more strictly according to the quality of the applicant, depending on whether the BPU's request for communication comes from an unsuccessful candidate who took part in the procedure or who could have done it, or a natural or legal person who is insusceptible by its quality or its social purpose to intervene in the competitive sector concerned? In the latter case, may a public purchaser who is seized for example by a lawyer or a natural person who is the subject of a BPU price communication request for a public contract, object to this disclosure? document to the risk of breach of industrial and commercial secrecy in the same way as if this request emanates from a direct competitor?
Nothing is so sure with obviously the risk that the applicant "masked" can be held liable for breach of business secrecy if by chance the price details were disclosed or reused? But how to prove it? And this especially as a lawyer does not, as a matter of principle, obligation to reveal the identity of the customers for whom it intervenes ......
Board of state
N ° 381635
Mr Timothée Paris, rapporteur
Mr Edouard Crépey, public rapporteur
SCP ROCHETEAU, UZAN-SARANO, lawyer (s)
Reading of Monday, May 2, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The limited company Toffolutti asked the administrative court of Rouen to annul for excess of power the refusal of the prefect of the Haute-Normandie region to communicate certain administrative documents relating to the public works contract, for which it had been candidate, for the manufacture, transport and implementation of hydrocarbon mixes for the maintenance of the national road network of the Caen perimeter, in particular the unit price list of the awarded company. By judgment n ° 1203719 of April 24, 2014, the court rejected this request.
By a summary appeal, an additional memorial and a new brief, registered on 23 June, 17 September and 27 October 2014 in the litigation secretariat of the Conseil d'Etat, the Toffolutti company asks the Conseil d'Etat to:
- to annul that judgment;
- settling the case on the merits, to grant his request;
- to charge the State the sum of 3,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- Law No. 78-753 of 17 July 1978;
- the code of administrative justice;
After hearing in open session:
- the report of Mr. Timothée Paris, master of petitions,
- the conclusions of Mr. Edouard Crépey, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Rocheteau, Uzan-Sarano, lawyer of the company Toffolutti;
Considering that it appears from the documents in the file submitted to the judges of the merits that the limited company Toffolutti was a candidate in the context of an open call for tenders launched by the interdepartmental management of the North-West routes for the manufacture, sale and sale of goods. transport and implementation of hydrocarbon mixes for the national road network of the Caen perimeter; that, by letter of January 9, 2012, the applicant was informed by the prefect of the Haute-Normandie region that his offer had not been retained, this letter specifying the name of the company awarded and the reasons for the rejection of his candidacy ; that, on February 17, 2012, the administration, partially granting its request for the disclosure of all the documents relating to this market, communicated to him the analysis report of the offers in a version which included only the information about him and the successful tenderer and informed him that the technical and financial details of the successful candidate's bid were not available; that, on referral to the company Toffolutti, the commission of access to the administrative documents rendered a favorable opinion, with certain reservations, to the communication of all the requested documents; that the company Toffolutti appeals in cassation against the judgment of 24 April 2014 by which the administrative court of Rouen rejected his request for the annulment of the decision by which the prefect refused to communicate to him some of the pieces requested, in the number of which the unit price list of the awarded firm as well as the uncluttered report analyzing the offers of the other candidates;
3. Considering that before the administrative courts and in the interest of good justice, the judge always has the faculty to reopen the instruction, which he directs, when he is seized of a production after the closing of it; that it belongs to him, in all the cases, to take knowledge of this production before rendering his decision and to aim it; that, if he decides to take it into account, he reopens the investigation and submits to the contradictory debate the elements contained in this production, which he must, furthermore, analyze;
4. Considering that SA Toffolutti has, on the eve of the hearing before the Administrative Tribunal, faxed a new memorial; it follows from the records recorded in the Sagace application that this brief was regularized on April 3, 2014, the day of the hearing; this memorandum is not covered by the judgment under appeal; that it follows from there, without it being necessary to examine the other grounds of the appeal, that the Toffolutti company is justified in maintaining that the judgment which it attacked was delivered at the end of an irregular procedure and to ask, for this reason, the cancellation;
5. Considering that it is necessary, in the circumstances of the case, to settle the case on the merits in application of the provisions of Article L. 821-2 code administrative justice;
6. Considering that under Article 1 of the Act of 17 July 1978 on various measures to improve relations between the administration and the public and various administrative, social and fiscal provisions then in force: " The right of every person to information is specified and guaranteed by the provisions of Chapters I, III and IV of this Title regarding the freedom of access to administrative documents. / For the purposes of their tasks, the documents produced or received shall be deemed to be administrative documents within the meaning of Chapters I, III and IV of this Title, irrespective of their date, place of storage, form and medium. public service, by the State, local authorities as well as by other persons of public law or persons of private law charged with such a mission. Such documents include records, reports, studies, minutes, minutes, statistics, directives, instructions, circulars, ministerial notes and replies, correspondence, notices, forecasts and decisions. (...) "; that according to article 2 of this same law: "Subject to the provisions of article 6, the authorities mentioned in article 1 are obliged to communicate the administrative documents which they hold to the persons who make it the request, under the conditions provided for in this Title. / The right of communication applies only to completed documents. " II of Article 6 of the Act provides that: "II.-The documents concerned may be communicated only to the person concerned: / - the communication of which would infringe the protection of private life, medical confidentiality and secrecy in commercial and industrial matters (...) ", that these provisions are now codified in Articles L. 311-1 to L. 311-6 of the Code of relations between the public and the administration;
7. Considering that it follows from the above-mentioned provisions that public contracts and related documents, including documents relating to the content of tenders, are administrative documents within the meaning of the provisions of Article 1 of the July 17, 1978; that, seized of an appeal relating to the communication of such documents, it is up to the judges of the merits to examine whether, by themselves, the information contained in the documents which it is asked the communication can, by affecting the competition between economic operators, to undermine the industrial and commercial secret and thus to hinder this communication in application of the provisions of II of article 6 of the law of 17 July 1978; that under the rules of the public order, must thus be regarded as communicable, subject to the secrets protected by the law, all the parts of the market; if, in particular, the act of engagement, the overall price of the tender and the services offered by the successful tenderer are in principle communicable, the unit price list of the successful tenderer, in that it reflects the strategy commercial enterprise operating in a sector of activity, is in principle, not communicable;
8. Considering that the documents in the file show that the market to which the documents at issue relate in the road surfacing sector is hydrocarbon asphalt, the manufacturing processes are of a competitive nature; it follows from this that the communication of the details of the tender offer of the awarded firm, which constitutes an essential component of its commercial strategy, is likely, even at the end of the execution of the contract, with regard to the nature of the latter, to alter the free play of competition between economic operators and thus to undermine the protection of commercial secrecy; that the prefect could thus legally refuse to communicate to the applicant the unit price list of the awarded company; whereas, in view of the reasons set out in point 6 of this Decision, the information on the overall amount of tenders submitted by unsuccessful applicants is different;
9. Considering that it follows from all the foregoing, that the society Toffolutti, whose application is admissible, contrary to what the prefect argues, is justified in asking the annulment of the decision it attacks only in so far as it refuses him the communication of information relating to the overall amount of tenders submitted by the unsuccessful candidates; that in the circumstances of the case, it is appropriate to charge the State the payment to the applicant of a sum of 1500 euros under Article L. 761-1 of the Code of administrative justice;
Article 1: The judgment of 24 April 2014 of the administrative court of Rouen is canceled.
Article 2: The decision of the prefect of the Haute-Normandie region is canceled in so far as it refuses the communication of information relating to the overall amount of the offers submitted by the unsuccessful candidate companies.
Article 3: The State will pay the company Toffolutti a sum of 1500 euros under Article L 76-1 code administrative justice.
Article 4: The remainder of Toffolutti's motion is dismissed.
Article 5: This decision will be notified to Toffolutti and the Minister of Environment, Energy and the Sea, responsible for international climate relations.