The dangers of offering services at 0 €!
TA Paris, 20 September 2016, Company FN Herstal SA, n ° 1612871/3
The dangers of offering services at 0 € .............
Rule n ° 1: The offer is irregular when it does not include the financial decomposition requested for each item even though the price proposed for these items is 0 €
In the case in point, the consultation rules asked the candidates to specify the amount and time of completion of each post by filling in a table in the annex, the offer must also include different accounting and resource elements. for each position. Candidates had yet to specify whether they intended to use subcontracting and, in this case, the nature, size and amount of the subcontracted services.
Since the applicant company offered prices of € 0 for certain positions, it did not specify the valuation or the average need for human resources for them. Nor did it provide the elements requested for subcontracting. Certain financial annexes to the deed of commitment were also not fulfilled, the company having preferred to submit an appendix which it has drawn up itself and containing information requested in the annexes in question.
The pre-contractual injunction judge therefore considered that the offer was irregular because of its incomplete nature, in particular by stating that the annex drawn up by the company did not constitute an appendix to the consultation file and that it did not include all required elements. It will be recalled that in the former Code des Marches Publics, the irregular offer is one that, while providing a response to the need of the contracting authority, is incomplete or does not meet the requirements set out in the public notice of appeal. competition or in the consultation documents (former Article 35 of the Code des Marches Publics).
Rule n ° 2: The offer is irregular when the proposed price deprives the buyer of the possibility to apply penalties while these are foreseen in the market
In the case at hand, the SCC provided for certain posts that, in the event of a delay, the penalties were calculated by applying a calculation formula multiplying the number of days of delay by the price of the post.
As the applicant company proposed prices of € 0 for several of these items, the contracting authority was not able to apply the penalties, which would have deprived it of a power of coercion.
However, since the CCAP provided that any delay in execution for all market positions must be sanctioned by the application of penalties, the offer did not meet the requirements of the consultation documents. The Pre-contractual Court Judge deduces that the offer is also irregular for this second ground.
Rule 3: Offer is unacceptable where it is likely to lead to a lack of remuneration of the holder of the contract
The offer of the applicant company providing a price of 0 € for all the positions of the firm tranche. The possibility of no firming up of the conditional periods entailed, potentially, the total absence of remuneration of the other party. The court ruled that the offer thus disregarded Article 1 of the former Public Procurement Code, which set out the principles of public procurement: freedom of access, equal treatment, transparency, to ensure the effectiveness of public procurement. public order and the proper use of public funds.
Accordingly, the Pre-contractual Court of First Instance holds that the offer is also unacceptable. It will be recalled that in the former Code des Marches Publics, an offer is unacceptable if the conditions for its implementation are in breach of the legislation in force, or if the budgetary appropriations allocated to the market after assessing the need to be met do not allow the finance.
In this case, it is the lack of knowledge of the legislation in force, namely Article 1 of the former Code des Marches Publics, which leads to the unacceptable nature of the offer. It should be noted that article 59 of the decree n ° 2016-360 of March 25th, 2016 relative to the public markets, today applicable, no longer retains the ignorance of the legislation in force. Henceforth, the unacceptable offer is the one whose price exceeds the budget allocated to the public contract as determined and established before the start of the procedure.