In which cases must the contracting authority require the production of supporting documents?
In this case, the Council of State provides useful information on the cases in which the contracting authority is required to require the production of supporting documents from candidates in order to be able to rate the offers.
Rule 1: the contracting authority must require the production of supporting documents when the value of tenders is examined in the light of a specific technical characteristic
Applying a principle affirmed in its judgment of 9 November 2015 (Autocars Autocars de l'Ile de Beauté, No. 392785), the Council of State recalls that when the contracting authority provides, to set a criterion or a sub-criterion d the award of the contract, that the value of the tenders will be examined with regard to compliance with a particular technical characteristic, it is incumbent on it to require the production of supporting documents enabling it to verify the accuracy of the information provided by the candidates.
Rule n ° 2: the determined technical characteristic results from specific requirements sanctioned by the bid evaluation system
In its judgment of 9 November 2015, the Conseil d'Etat had ruled, in relation to a school bus contract, that the existence of a sub-criterion relating to the parking of vehicles in a covered place required the contracting authority to produce supporting documents enabling it to check the declarations of the candidates on this point. In this judgment, concerning a contract for the collection of household waste, it notes that, even if the number and characteristics of the vehicles used were to be examined under the criterion 'human and material numbers', the contracting authority was not obliged to ask for supporting documents in this respect because he had not issued any specific requirements sanctioned by the bid evaluation system.
BOARD OF STATE
No. 396597, 396633
COMMUNITY OF AGGLOMERATION OF THE COASTAL CENTER and others
Mr Gregory Rzepski
Mr Olivier Henrard
Session of July 6, 2016
Reading of July 22, 2016
IN THE NAME OF THE FRENCH PEOPLE
The Council of State ruling on litigation (Litigation section, 7th and 2nd chambers combined)
On the report of the 7th chamber of the Litigation Section
Considering the following procedures:
The Sogema company asked the judge of summary proceedings of the administrative court of Guyana, ruling on the basis of article L. 551-1 of the code of administrative justice:
- to cancel the procedure for awarding lots 1 and 2 of the collection contracts for household and similar waste and dry recycables for the town of Cayenne outside the Collery area and the towns of Cayenne for the Collery area, Matoury Nord, Macouria and Montsinéry-Tonnégrande, as well as the decisions by which the urban community of the Center Littoral awarded each of the lots, respectively, to the company G2C and to the company Guyanet and rejected its offers;
- to enjoin the agglomeration community of the Center Littoral to resume all procedures.
By an order no. 1500936 of 14 January 2016, the judge hearing the application for interim relief from the Administrative Court of Guyana annulled the procedure for the award of lots 1 and 2 at the examination stage and rejected the remainder of the claims from Sogema.
1 ° By a decision n ° 396597 of March 23, 2016, the Council of State, ruling in the litigation, pronounced the admission of the conclusions of the appeal of the community of agglomeration of the Center Littoral directed against the order of the judge of summary proceedings of the administrative court of Guyana of January 14, 2016 insofar as it ruled on the procedure for the award of lot n ° 2.
By a defense, registered on April 15, 2016, the company Sogema contends that the appeal should be dismissed for the same reasons as those set out under no. 396633 and that it should be charged to the urban community of Center Littoral the sum of 5,000 euros under the provisions of article L. 761-1 of the code of administrative justice.
By a reply, registered on May 11, 2016, the agglomeration community of the Center Littoral concludes for the same purposes by the same means.
The appeal was sent to Guyanet, which did not produce a brief.
2 ° Under no. 396633, by a summary appeal, a supplementary memorial and a reply, registered on 1 February, 15 February and 19 May 2016 to the litigation secretariat of the Conseil d'Etat, Guyanet and SAS Guyanet environment ask the Council of State:
- to annul that order in so far as it decided on the procedure for awarding lot 2;
- ruling by way of summary judgment, dismiss the Sogema company's findings of first instance;
- to charge Sogema with the sum of 5,000 euros under Article L. 761-1 of the Code of Administrative Justice.
Considering the other parts of the files;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mr. Grégory Rzepski, Master of Applications in Extraordinary Service,
- the conclusions of Olivier Henrard, public rapporteur;
The floor having been given, before and after the conclusions, to SCP Foussard, Froger, lawyer of the agglomeration community of Center Littoral, to SCP of Nervo, Poupet, lawyer of the company Sogema and to SCP Rousseau, Tapie , lawyer for the companies Guyanet and Guyanet Environnement;
Considering the note under advisement, registered on July 7th, 2016, presented by the company Sogema under n ° 396597 and 396633;
1. Considering that the appeals, on the one hand, the agglomeration community of the Center Littoral and, on the other hand, the company Guyanet and SAS Guyanet environment are directed against the same order; whereas it is necessary to join them so that they are the subject of a single decision;
2. Considering that under the terms of article L. 551-1 of the code of administrative justice: “The president of the administrative court, or the magistrate whom he delegates, can be seized in the event of failure to fulfill the obligations of publicity and competitive tendering to which the contracting authorities are responsible for the conclusion of administrative contracts for the execution of works, the delivery of supplies or the provision of services, with an economic consideration consisting of a price or an operating right, or the delegation of a public service (…) ”; that under I of article L. 551-2 of this code: "I. The judge may order the author of the failure to comply with his obligations and suspend the execution of any decision relating to the signing of the contract, unless he considers, in consideration of all the interests likely to be injured and in particular the public interest, that the negative consequences of these measures could outweigh their benefits. / He may, in addition, annul the decisions relating to the conclusion of the contract and delete the clauses or prescriptions intended to appear in the contract and which disregard the said obligations (…) ”; that under article L. 551-10 of the same code: "The persons authorized to initiate the remedies 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 harmed by the alleged violation (…) ”;
3. Considering that, by a notice published on August 28 and September 1, 2015, the agglomeration community of the Center Littoral launched a tender procedure for the award of a contract for the collection of household and similar waste and dry recyclables; that, by an order dated January 14, 2016, the judge of the pre-contractual summary of the administrative court of Guyana, seized by the company Sogema, canceled the procedure of passage of the lot n ° 2 as from the examination of the offers, as well as the decision by which the agglomeration community of the Center Littoral awarded this lot to the company Guyanet and to the SAS Guyanet environment; that these, under n ° 396633, appeal, to this extent, against this order; that, by a decision n ° 396597 of March 23, 2016, the Council of State, ruling on the litigation, also pronounced the admission of the conclusions of the appeal of the community of agglomeration of the Center Littoral directed against this ordinance as only qu '' it gave its opinion on the procedure for the award of lot No 2;
4. Considering that it appears from the documents in the file submitted to the judge in summary proceedings that under article 1.1 of the special technical specifications applicable to lot n ° 2, which concerns the municipalities of Cayenne for the Collery, Matoury area North, Macouria and Montsinéry-Tonnégrande, the market focused, on the one hand, on regular collection services, remunerated by a fixed price and, on the other hand, on occasional collection operations, remunerated at unit price, including cumulative cost should not exceed 5 % of the contract amount; that the documents of the consultation provided that the comparison of the offers, as regards the criterion of the price, would be carried out only on the basis of the total and fixed price proposed by the candidates; that, when comparing the offers of candidates, the urban community of the Center Littoral decided to also take into account the price of occasional services; that however, to make this assessment, it limited itself, for each candidate, to value the occasional services to an amount corresponding to 5 % of the global and fixed price proposed for the services of regular collections; that such a choice was thus insusceptible, in the present case, taking into account the scoring method adopted, based on the difference between the amount of the offer analyzed and the amount of the cheapest offer, to succeed to notes different from those which would have been given to the candidates if only the price of the regular collection services had been retained in accordance with the consultation regulations; that it follows from there that by judging that the company Sogema had been likely to be injured by the alleged failure, based on the fact that the contracting authority had modified the criterion of the price after the submission of the offers, whereas the taking into account account of the price of occasional services, not provided for by the consultation regulations, could not have had an impact on the ranking of tenders, the judge of the pre-contractual summary order vitiated his legal classification error order; that, therefore, and without it being necessary to examine the other grounds of the appeals, article 2 of its order as well as article 3 in so far as it rejects the claims presented by the company Guyanet and SAS Guyanet environment tending to the application of the provisions of article L. 761-1 of the code of administrative justice must be canceled;
5. Considering that it is necessary, pursuant to the provisions of Article L. 821-2 of the Code of Administrative Justice, to settle, to this extent, the case under the procedure of interim proceedings initiated;
6. Whereas, as stated in paragraph 4, Sogema was not prejudiced by the change in the price criterion during the consultation procedure after the submission of tenders by the candidates;
7. Considering, it is true, that the Sogema company claims that the price criterion, as defined in the consultation regulations, did not allow the urban community of the Center Littoral to determine the most economically viable offer advantageous, in violation of the provisions of article 53 of the public procurement code, since it excluded occasional collection operations from its assessment of the price of the offers; whereas, however, having regard to the limited use of these services, the cumulative cost of which could not exceed 5 % of the amount of the contract and their hypothetical nature, the contracting authority was not required to provide for such an assessment; that as a result, the plea must be rejected;
8. Considering, finally, that when the contracting authority provides, in order to fix a criterion or sub-criterion for the award of the contract, that the value of the tenders will be examined in the light of compliance with a given technical characteristic, it is incumbent upon it '' require the production of supporting documents enabling him to verify the accuracy of the information given by the candidates; that, however, in the present case, if it appears from the documents of the consultation that the number and summary characteristics of the vehicles used had to be examined, under the criterion of "human and material resources", the conurbation du Center Littoral had not issued any specific requirements in this respect sanctioned by the tender evaluation system stipulated by the consultation regulations; that the plea based on the fact that by refraining from requiring candidates to produce supporting documents relating to compliance with such requirements, it would have breached its obligations of publicity and competition cannot thus, in any event event, that being dismissed;
9. Whereas it follows from all the foregoing that Sogema's request for the annulment of the procedure for awarding lot No 2 must be rejected;
10. Considering that the provisions of article L. 761-1 of the administrative justice code prevent that the company Guyanet and SAS Guyanet environnement are charged, which are not the losing parties in the present litigation, the payment of the sums requested, as such, the company Sogema; that in the circumstances of the case, it is not necessary to charge the community of agglomeration of the Center Littoral the sum requested in the same way by the company Sogema; that on the other hand, it is necessary, in the circumstances of the case, to charge the company Sogema the payment, in the same way, of a sum of 3000 euros to the urban community of Center Littoral and a total sum of 4,500 euros for the entire procedure to the company Guyanet and to the SAS Guyanet environment;
Article 1: Article 2 of the order of the Judge of the Court of Justice of Guyana of January 14, 2016 and Article 3 in so far as it rejects the conclusions presented by Guyanet society and SAS Guyanet environment tending to the application of the provisions of Article L. 761-1 of the Administrative Justice Code are canceled.
Article 2: The request from the company Sogema for the cancellation of the procedure for awarding lot n ° 2 of the market for the collection of household and similar waste and dry recyclables concerning the municipalities of Cayenne for the Collery, Matoury North, Macouria and Montsinéry area -Tonnégrande, as well as the decision by which the urban community of the Center Littoral awarded this lot is rejected.
Article 3: Sogema will pay a total sum of 4,500 euros to Guyanet and SAS Guyanet environnement and a sum of 3,000 euros to the urban community of the Center Littoral under article L. 761-1 of the code of administrative justice.
Article 4: The conclusions of the company Sogema submitted under the provisions of Article L. 761-1 code administrative justice are rejected.
Article 5: This decision will be notified to the agglomeration community of the Center Littoral, to the company Guyanet, to the company Guyanet environnement, to the company Sogema and to the company G2C.