Public buyers must evaluate the completeness of an offer!
CE 9th of June 2017, Municipality of Saint-Maur-des-Fossés, n ° 408082
TA Melun, 1st February 2017, Urbis Park Company, n ° 1609916
A municipality had launched a consultation for the conclusion of a delegation of public service for the management of car parks and surface parking of the city. During the negotiation, the settlement of the consultation was modified several times by the licensing authority, which finally decided to forgo taking into account an "optional scenario" and analyzed only part of each bid .
The company Urbis Park having been informed that its offer was not successful, it applied to the judge for interim relief for the annulment of the decision rejecting the offer, the annulment of the decision assignment of the delegation and the annulment of the procedure. As the judge hearing the application for interim relief annulled the procedure for placing the delegation, the municipality lodged an appeal with the Conseil d'Etat, which condemns in that judgment the partial analysis by a contracting authority of the tenders submitted by the candidates.
Rule No. 1: Failure to evaluate the entire offer constitutes a breach
The municipality had amended the consultation rules several times. In its latest version, it provided that candidates should submit their proposals according to two "scenarios": the first based on the absence of any subsidy paid by the municipality to the delegate ("base scenario"), the second integrating the eventual Assumption by the future delegate, on 1 January 2018, of new missions to draw the consequences of the provisions authorizing the collection of parking fees introduced by the law of 27 January 2014 for the modernization of the territorial public action and affirmation metropolises ("scenario" says "optional"). The municipality finally decided not to take into account, at the bid evaluation stage, this second "scenario" and therefore examined only the offers of the companies corresponding to the first "scenario", without informing the candidates.
The Administrative Court held that by not appreciating the tenders submitted to it as a whole, if necessary by setting a weighting on the rating of the option and by not assessing in particular the financial part of this "option" , which resulted in the surplus substantially modifying the execution of the public service delegation contract in question without making any competition for its financial implications, the municipality failed to fulfill its obligations of equal treatment of candidates and transparency of the proceedings and adversely affected the interests of the applicant.
The Conseil d'Etat validates this reasoning by holding that the order of the judge hearing the application for interim relief is sufficiently reasoned and is not vitiated by any error of law, denaturation or error in the legal characterization of the facts.
Rule 2: The judge need not inquire whether a breach by the public purchaser is likely to cause greater injury to the plaintiff than to the other candidates
The municipality argued that the judge hearing the application for interim measures should have investigated whether the breach alleged was likely to cause greater damage to the applicant than the other candidates. The Conseil d'Etat rejects this argument, recalling a position already expressed (see EC, 1 June 2011 Commune de Saint-Benoit, application No. 345649), namely that " s'it is for the pre-contractual injunction judge to inquire whether the undertaking which seizes it avails itself of deficiencies which, having regard to their scope and the stage of the procedure to which they relate, are likely to have injured or risk causing damage to it if it indirectly benefits a competing firm, it is not for it to seek in this respect whether the breach alleged was likely to cause injury to the applicant more than the other applicants ".
Rule 3: Substantial modification of the rules of consultation after the submission of tenders and without having informed the candidates is unlawful
In addition to the lack of evaluation of the entire offer, the Council of State also notes that the municipality substantially modified the consultation rules during the negotiation phase and decided to abandon the "scenario". optional "without ever having informed the candidates admitted to submit an offer. The administrative court ruled that the municipality had thus breached the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures. The Council of State approves this position and holds that all these shortcomings justify the cancellation of the entire procurement procedure.
Board of state
N ° 408082
7th - 2nd rooms together
Play of Friday, June 9, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The Urbis Park company applied to the judge of the administrative courts of Melun, on the basis of Article L. 551-1 of the Code of Administrative Justice, of an application tending, in the first place, to the cancellation of the decision of November 25, 2016 by which the municipality of Saint-Maur-des-Fossés rejected its bid for the conclusion of a public service delegation agreement for the allocation of the management of parking lots and parking on the surface, in the second place, to the annulment of the decision by which that municipality awarded that delegation to Effia Parking and, finally, to the annulment of the proceedings in dispute. By order no. 1609916 of 1 February 2017, the judge of the Melun Administrative Court dismissed the procedure for the award of the public service delegation.
By a summary appeal, a supplementary memorial and a reply, registered on 16 February, 3 March and 3 May 2017 at the litigation secretariat of the Conseil d'Etat, the municipality of Saint-Maur-des-Fossés asks the Council of State:
1 °) to cancel this order;
2 °) settling the case under the interim proceedings, to reject the application filed by the company Urbis Park;
3 °) to charge the company Urbis Park the sum of 5000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the general code of local authorities;
- Law No. 2014-58 of 27 January 2014;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mr Marc Firoud, master of requests in extraordinary service,
- the conclusions of Olivier Henrard, public rapporteur.
The word having been given, before and after the conclusions, to the SCP Piwnica, Molinié, lawyer of the commune of Saint-Maur-des-Fossés and to the SCP Nicolaÿ, of Lanouvelle, Hannotin, lawyer of the company Urbis park.
- Considering that the documents in the file submitted to the judge hearing the application for interim relief from the Melun Administrative Court show that, by a notice published in the Official Journal of the European Union of 10 March 2016, the municipality of Saint-Maur-des-Fossés a consultation for the conclusion of a public service delegation for the management of the parking lots and surface parking of the city; that after this consultation, five companies were admitted to participate in the negotiation phase, including the company Urbis Park; that during this negotiation, the regulation of the consultation has been modified several times by the licensing authority; that in its latest version, this document provided that the candidates should submit their final offer by declining it according to two "scenarios", the first one based on the absence of any subsidy paid by the municipality of Saint-Maur-des-Fossés to the delegate ("scenario" called "basic"), the second incorporating the possible assumption, by the future delegate, to 1 January 2018, new missions to draw the consequences of the provisions authorizing the collection of parking fees introduced by the law of 27 January 2014 on the modernization of territorial public action and the affirmation of metropolises ("scenario" called "optional"); that the municipality finally gave up taking into account, at the stage of the evaluation of the offers, this second "scenario"; that, by a letter of November 25, 2016, the company Urbis Park was informed by the mayor of the municipality of Saint-Maur-des-Fossés that his offer was not retained; that by an order of 1 February 2017, against which the municipality appeals cassation, the judge of the interim relief, at the request of the company Urbis Park, canceled the contract award procedure;
- Considering, in the first place, that if the commune of Saint-Maur-des-Fossés maintained that the offer of the company Urbis Park was irregular and that this one could not consequently be damaged by the shortcomings which it invoked, the judge hearing the application for interim relief did not distort the documents in the file submitted to him on the ground that the company's offer could not be regarded as disregarding the rules of the consultation; that, if it also incorrectly noted that a negotiation was still possible, when it was the final offer of the company, this error affects only one superabundant reason for the order attacked;
- Considering, secondly, that if it is for the pre-contractual injunction judge to inquire whether the undertaking which seizes it avails itself of infringements which, in view of their scope and the stage of the procedure to which they relate, are likely to If it has injured or is likely to harm it, albeit indirectly by benefiting a competing enterprise, it is not for it to seek in this respect whether the breach alleged was likely to cause injury to the applicant more than the other applicants; that, consequently, the pre-contractual judge of the administrative court of Melun did not make mistake of law by not inquiring if the breach invoked by the company Urbis Park had been likely to hurt more than its competitors; that, furthermore, to find that the failure of the granting authority to assess the completeness of the tender of an undertaking constitutes a failure on the part of the granting authority to candidates and transparency of the procedures likely to harm the company, the pre-contractual judge has, contrary to the contention of the municipality, tainted its order, which is sufficiently motivated, nor error of law, nor denaturation, no error in the legal qualification of the facts;
- Considering, lastly, that it appears from the documents in the file submitted to the judge of the pre-contractual summary that the municipality of Saint-Maur-des-Fossés decided, after having substantially modified the rules of the consultation during the negotiation phase and without have never informed the candidates admitted to submit an offer of their choice, to give up the "scenario" said "optional" and to proceed only to a partial review of the various offers; that in finding that such a breach of the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures justified the cancellation of the entire award procedure, the judge hearing the application for interim measures did not err in law;
- Considering that it follows from the foregoing that the municipality of Saint-Maur-des-Fossés is unfounded to request the annulment of the order under appeal; that the provisions of Article L. 761-1 are, therefore, an obstacle to its claims for costs incurred by it and not included in the costs; whereas on the other hand, under the same provisions, the payment of a sum of EUR 3,500 to the company Urbis Park should be borne;
Article 1: The appeal of the municipality of Saint-Maur-des-Fossés is rejected.
Article 2: The municipality of Saint-Maur-des-Fossés will pay the company Urbis Park a sum of 3 500 euros under Article L. 761-1 code administrative justice.
Article 3: This decision will be notified to the municipality of Saint-Maur-des-Fossés.
TA of Melun
Ord. n ° 1609916 from 1st February 2017,
The conclusions submitted on the basis of the provisions of Article L. 551-1 of the Code of Administrative Justice :
- According to Article L. 551-1 of the Administrative Justice Code: "The chairman of the administrative court, or the magistrate he delegates, may be seized in the event of failure to comply with the disclosure and tendering requirements to which the contracting authorities are subject to administrative contracts for the purpose of executing works, the supply of supplies or the provision of services, with an economic counterpart constituted by a price or a right of exploitation, or the delegation of a public service or the selection of a shareholder economic operator of a company of mixed economy with a single operation (...). / The judge is seized before the conclusion of the contract ". According to Article L. 551-2 of the same code: "I. - The judge may 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 he considers, in consideration of all the interests that may be harmed, including the public interest, that the negative consequences of these measures may outweigh their benefits. It may, moreover, annul the decisions relating to the awarding of the contract and delete the clauses or requirements intended to appear in the contract which do not comply with those obligations. (...) " and according to 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 may be harmed by the breach invoked (...) ". It follows from those provisions that it is not for the pre-contractual judge to refer only to the contracting authority's compliance with the publicity and competitive bidding requirements for the awarding of a contract. , to express an opinion on the assessment 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.
- By virtue of those same provisions mentioned above in Article L. 551-1 of the Administrative Justice Code, the persons empowered to take action to put an end to the contracting authority's failure to meet its disclosure and competitive bidding requirements are those capable of be harmed by such failures. It is therefore incumbent on the judge of the pre-contractual summary proceedings to ascertain whether the undertaking which seizes it avails itself of breaches which, in view of their scope and the stage of the procedure to which they relate, are likely to have harmed it or risked to prejudice it, even indirectly, by favoring a competing enterprise.
- By a notice published in the Official Journal of the European Union of 10 March 2016, the city of Saint-Maur-des-Fossés has launched a consultation for the conclusion of a public service delegation for the management of car parks and the surface parking of the city, according to the procedure defined in articles L. 1411-1 and following and R. 1411-11 and following of the general code of the territorial collectivities. It was for the delegatee to ensure the management and operation of all the facilities involved in the realization of the public parking service. The perimeter covered a total of approximately 3,300 parking spaces and the duration of the delegation was planned over fifteen years. The selection criteria for the offers were the quality of the service provided to the users, on 35 points, the quality of the project proposed by the candidate, on 15 points, and the financial value of the offer, on 50 points. According to Article 8.2 of the consultation rules, the criterion of the financial value of the tender was divided into six sub-criteria, the amount of the fee for the occupation of the public domain provided for in a D1 file submitted by the candidate, on 25 points, the amount and the methods of calculation of the participation concerning the on-street parking paid by the City to the delegate (folder D2), the amount of the planned investment project (folder D3), the proposed fee schedule and its adequacy to the objectives of the community for off-street parking (D4 folder), the relevance and consistency of the forecast operating account (D5 folder) and the development of attendance and revenue from the contract (D6 folder), these last five sub-criteria being scored each on 5 points. The deadline for submission of tenders was 20 April 2016 and then extended to 10 May 2016. A first round of negotiations was held on 22 and 23 June 2016, at which the applicant companies were invited to submit a new improved offer no. 2 no later than July 29, 2016. An amended consultation by-law was circulated to the candidate companies, with the City indicating that it wanted them to submit their proposals under two scenarios, the first with an offer based on on the absence of any subsidy paid by the City to the delegate and the second with an alternative offer based on the acceptance by the City of the payment to the delegatee of a possible grant whose amount would be as small as possible. Applicants were also asked to provide "Option "Concerning the implementation by the City of certain provisions of the law n ° 2014-58 of 27 January 2014, ie the decriminalization of the parking fines that the City wished indeed to possibly integrate within the framework of the future contract. However, the City intended to reserve the right to lift or not this option from the entry into force of the law, originally scheduled for 1st January 2016 then postponed to 1st January 2018. The details of the criterion of the financial value of the offer were not modified. After a second round of trading the 1st and 2 September 2016, candidates were invited to submit an improved offer no. 3 by 20 September 2016. A third version of the consultation rules was circulated and a third round of bargaining was held on 29 September 2016, with candidates being invited to submit their final offer on 10 October 2016. It stated that the final offer should be made on the basis of Scenario 1 », Namely without subsidy paid by the City and that the offer of the candidates had to integrate the eventual load of the future delegate of« the option On the implementation by the City of decriminalization. The above-mentioned article 8.2 of the bylaw was not modified in the latest version distributed to candidates.
- The company Urbis Park submitted an offer mentioning, for the " Scenario 1 ", A fixed fee of 5,000 euros per year, and for" the option », A fixed fee of 150 000 euros, this one being implemented as of 1st January 2018. By a letter of November 25, 2016, the Mayor of Saint-Maur-des-Fossés informed her that her offer was not accepted and that it was the proposal of the company Effia Parking which appeared as the one satisfying the criteria of the delegation. It thus obtained 58.7 points against 81.14 points for the awarded company, a difference of 22.44 points, explained to the extent of 21.9 points by the sub-criterion of the amount of the fee for the occupation of the field. It appeared from reading the annex to this letter that for this sub-criterion, only the basic the scenario n ° 1 Had been analyzed, thus excluding its proposals on " the option On decriminalization. It therefore asks, in its capacity as the representative of the group formed with the company " The Sons of Madame Géraud ", The annulment of this decision, together that of the city of Saint-Maur-des-Fossés to award the contract to the company Effia Stiationnement, and to enjoin the municipality to cancel the procedure of call for competition in dispute.
- The company Urbis Park criticizes the municipality of Saint-Maur-des-Fossés for not having analyzed the whole of its offer so with " the option Nevertheless required in the regulation of the consultation and relating to the implementation of the decriminalization of parking fines, even though it was likely, given the duration of the public service delegation, that it would be implemented. during a significant part of the contract and therefore to have judged the offers of candidates only very partially. The municipality, for its part, maintains that it had not taken any decision as to the implementation of this decriminalization which, although planned for the 1st January 2018, had already been postponed twice and there was no reason to say that it would not be repeated again because of its great difficulties of application. It also argues that, in any event, besides the company Urbis Park was negligent in not seeking an explanation on the inconsistencies alleged in the settlement of the consultation, which are only errors of pen, the difference in points between the two companies was such that, even if the options were also noted, the offer of the company Effia Parking would have always been better, and that besides the candidacy of the company Urbis Park was irregular because it did not comply with the requirements set out in the consultation documents since it had included in its draft contract the provision of a minimum number of screening officers, as specified in the consultation rules. that the City did not wish to commit to a level of on-street parking control, because it had included in the same project a provision that could leave believe that it would seek compensation in the event of non-compliance with the projected operating account, as it offered unrealistic operating revenue, far in excess of current receipts and proposals from other candidate companies, since it had draft contract a clause of revision of the contract assimilable to a right to permanent compensation.
- According to Article L. 1411-1 of the General Code of Territorial Collectivities, in its applicable version, the procurement procedure was initiated before 1st April 2016: " A public service delegation is a contract by which a legal person governed by public law entrusts the management of a public service for which it is responsible to a public or private delegate, the remuneration of which is substantially related to the results of the operation of the service. . The delegatee may be responsible for constructing works or acquiring goods necessary for the service. The public service delegations of legal persons governed by public law covered by this Code are subject by the delegating authority to an advertising procedure allowing the presentation of several competing offers, under the conditions laid down by a decree of the Conseil d'Etat. (...) The community sends each candidate a document defining the quantitative and qualitative characteristics of the services and, if applicable, the pricing conditions for the service rendered to the user. The tenders thus presented are freely negotiated by the authority responsible for the delegating public entity which, at the end of these negotiations, selects the delegatee " under Article R. 1411-1 of the same Code: " The authority responsible for the delegating public entity must meet the advertising requirement set out in Article 1411-1 by insertion in a publication entitled to receive legal notices and in a specialized publication corresponding to the economic sector concerned. This insertion specifies the deadline for submission of candidatures, which must be fixed at least one month after the date of the last publication. It also specifies the methods of presentation of these offers and mentions the essential characteristics of the envisaged convention, in particular its object and its nature. ".
- Public service delegations are subject to the principles of freedom of access, equal treatment of candidates and transparency of procedures, which are general principles of public procurement law. To ensure compliance with these principles, the public company must provide candidates for the award of a public service delegation, before submitting their offers, information on the criteria for selecting offers. The public entity, which freely negotiates the offers before choosing, at the end of this negotiation, the delegatee, is not obliged to inform the candidates of the modalities of implementation of these criteria. If, however, even though it is not required to do so, it publishes the procedures for implementing the selection criteria and, if it intends to modify them, it can legally do so only by informing candidates for this amendment in good time before the submission of applications, so that they may be usefully submitted, in the event that the initial information on the implementation of the criteria has itself been given before the submission of the applications, or in good time before the submission of tenders, so that they can be usefully submitted, in the case where initial information has been given only after the submission of applications. Consequently, when the public company has informed the candidates of the methods for implementing the selection criteria for the tenders, it can not in any event modify them after the submission of tenders without disregarding the principle of transparency of the procedures.
- It appears from the documents in the file that the regulation of the consultation, in its latest version distributed to the applicant companies, specified in point 6.2 that their final offer should be established on the basis of a scenario called " Scenario 1 ", Without subsidy paid by the City and should also include the eventual charging of the future delegate of" the option On the decriminalization of parking fines. However, the same regulation did not distinguish, in point 8.2 concerning the selection criteria for option Of the main offer. If Schedule 2 of the consultation by-law specified that candidates had to submit two files, one for Scenario 1 And one for " the option , Different in financial terms, only as the file of Scenario 1 should have a subfolder B 32 respecting the amount and the methods of calculation of the participation concerning the on-street parking paid by the City to the delegate ", Nonexistent in the record of" the option There was no provision in the Regulation to indicate that it was not subject to an assessment in particular of its financial aspects, so that the candidates could reasonably consider that their tender would be evaluated as a whole, 'ie including' the option On decriminalization, which, given the expected duration of the public service delegation, ie 15 years, must necessarily include it during a significant part of its implementation, even though its actual implementation date did not apply. not at the time a character of absolute certainty, always subject to a third postponement by law and the city council has not yet taken a decision on it.
- In these circumstances, the company Urbis Park, to whom it can not be blamed for any negligence in the matter since it could not assume a priori that the settlement of the consultation contained inconsistencies, these having appeared only after reading the note of November 25, 2016 rejecting its offer, is based to maintain that by not appreciating the offers submitted to it as a whole, if necessary by setting a weighting on the rating of the option, and by not assessing in particular the financial part of this option ", Which resulted in the surplus to substantially modify the execution of the public service delegation contract in question without proceeding to a competition of its financial implications, the City of Saint-Maur-des-Fossés failed to meet its obligations of equal treatment of the candidates and transparency of the procedures and harmed his interests, without being able to oppose him the very great difference of points of his offer with that of the awarded company, since this one was in the end analyzed only very partially and that in any event this difference results almost exclusively from the criterion of the financial value of the offer.
- If the City of Saint-Maur-des-Fossés maintains that in any event, the offer of the company Urbis Park was irregular and non-compliant in that the draft contract transmitted included provisions expressly rejected by the regulation of the consultation, in particular with regard to the obligations that this project would have placed on the City, it appears from the documents in the file that the draft contract submitted by the applicant companies was still to be the subject of negotiations in application of the Article 8.3 of the consultation rules between the Mayor and the nominee so that the alleged irregularities contained in the draft contract transmitted by the company Urbis Park were not definitive, the number of screening officers to be assigned to the surveillance of the street parking is also not even informed, that moreover these irregularities were not noted in the lette of November 25, 2016 the letter of 4 July 2016, and that the revenue proposed by the applicant company in the context of the option Of decriminalization had been established following an assessment of the possible and not excessive increase in parking revenues, the city of Saint-Maur-des-Fossés being well below the national average in terms of revenues. parking. The municipality of Saint-Maur-des-Fossés is therefore unfounded to maintain that the proposal of the company Urbis Park would have been irregular and non-compliant.
- The judge of the pre-contractual recitals, as soon as it is duly seized, disposes of all the powers which are conferred on him by the aforementioned provisions of the article L. 551-1 of the code of administrative justice to put an end, it notes the existence, the failures of the administration to its obligations of publicity and putting in competition. Thus, having regard to its office, it is incumbent upon it to take all the necessary measures to ensure compliance with these obligations, when it finds that, as a result of the decision it takes, they can not be satisfied by the authority responsible for the delegating public entity, in case of continuation of the contract award procedure.
- It follows from point 9 above that the City of Saint-Maur-des-Fossés failed to fulfill its obligations of equal treatment of candidates and transparency of procedures by not analyzing the offers of the various candidates in their entirety, even though it had asked them to produce a file providing for the implementation of the option Of decriminalization. However, such an analysis can not take place without the City having determined in advance the criteria for taking into account the offer corresponding to " Scenario 1 And those of the option On the decriminalization, and the possible weighting between these two scenario and option. Moreover, the latter, while corresponding to two very different execution methods of the same public service delegation, were part of a single set, which could influence the construction of the offers of the candidate companies.
- It follows from the foregoing that Urbis Park is justified in seeking the annulment of the decision of 25 November 2016 by which the municipality of Saint-Maur-des-Fossés informed it of the rejection of its offer presented in the part of the public service delegation for the operation of paid parking on roads, in structures and enclosures, together the decision of the municipality attributing the delegation in question to Effia Parking, and consequently of the whole of the procedure for awarding this public service delegation, without the need for the municipality to communicate the bid analysis report.
The conclusions submitted on the basis of the provisions of Article L. 761-1 of the Code of Administrative Justice :
- According to Article L. 761-1 of the Code of Administrative Justice: "In all proceedings, the judge shall order the party liable to pay the costs or, failing that, the losing party, to pay to the other party the sum he determines, in respect of the costs incurred and not included in the costs. The judge takes into account the fairness or the economic situation of the convicted party. It can, even automatically, for reasons derived from the same considerations, say that there is no place for this conviction. ".
- The provisions of Article L. 761-1 of the Code of Administrative Justice, preclude the charging of the company Urbis Park, which is not the losing party in the present case, the amount requested from this title by the city of Saint-Maur-des-Fossés and the company Effia Parking. On the other hand, in the circumstances of the case, it is appropriate to apply those provisions and to order the city of Saint-Maur-des-Fossés to pay to Urbis Park a sum of EUR 1,500 under the same provisions.
Article 1st : The procedure for signing the public service delegation contract published on March 10, 2016 by the city of Saint-Maur-des-Fossés for the management of parking lots and surface parking is canceled.
Article 2 : The municipality of Saint-Maur-des-Fossés will pay the company Urbis Park a sum of 1 500 euros pursuant to Article L. 761-1 code administrative justice.
Article 3 : The surplus of the conclusions of the request of the company Urbis Park and the request of the company Effia Parking under Article L. 761-1 code administrative justice are rejected.
Article 4 : This order will be notified to the company Urbis Park, the company Effia Parking and the municipality of Saint-Maur-des-Fossés.