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 with a view to concluding a public service delegation for the management of car parks and surface parking in the city. During the negotiation, the consultation rules were modified several times by the conceding authority, which finally decided to give up taking into account an “optional scenario” and analyzed only part of each offer. .
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 n ° 1: Failure to assess the entire offer constitutes a breach
The municipality had amended the consultation regulations on several occasions. In its latest version, it provided that candidates should present their proposals according to two "scenarios": the first based on the absence of any subsidy paid by the municipality to the delegatee ("base scenario"), the second incorporating the possible assumption, by the future delegate, on January 1, 2018, of new missions to draw the consequences of the provisions authorizing the collection of parking fees introduced by the law of January 27, 2014 of modernization of the territorial public action and affirmation metropolitan areas (“scenario” says “optional”). The municipality finally gave up taking into account, at the stage of the evaluation of the offers, this second "scenario" and therefore only examined the offers of the companies corresponding to the first "scenario", without informing the candidates.
The administrative court held that by not assessing the offers submitted to it as a whole, if necessary by fixing a weighting on the rating of the option and by not assessing in particular the financial part of this "option" , which resulted, moreover, in substantially modifying the performance of the public service delegation contract in question without competing for its financial implications, the municipality failed to fulfill its obligations of equal treatment of applicants and transparency of the proceedings and prejudiced 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 n ° 2: the judge does not have to find out whether a failure by the public purchaser is likely to harm the applicant more than 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 up to the judge of the pre-contractual summary procedure to find out whether the company which seizes him avails himself of shortcomings which, having regard to their scope and the stage of the procedure to which they relate, are likely to have injured him or are likely to harm him , even if it was indirectly by favoring a competitor, it is not for him to investigate on this basis whether the alleged breach was likely to harm the applicant more than the other candidates ".
Rule n ° 3: substantial modification of the consultation rules after the submission of tenders and without having informed the candidates is illegal
In addition to the lack of evaluation of the entire offer, the Council of State also notes that the municipality has substantially modified the consultation regulations during the negotiation phase and has 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 applicants and transparency of procedures. The Council of State approves this position and retains that all of these shortcomings justify the cancellation of the entire procurement procedure.
Board of state
N ° 408082
7th & #8211; 2nd rooms together
Play of Friday, June 9, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company Urbis Park seized the judge of summary proceedings of the administrative court of Melun, on the basis of article L. 551-1 of the code of administrative justice, a request tending, in the first place, to the cancellation of the decision of 25 November 2016 by which the municipality of Saint-Maur-des-Fossés rejected its offer submitted with a view to the conclusion of a public service delegation agreement for the allocation of the management of parking lots and parking on the surface, secondly, the annulment of the decision by which this municipality allocated this delegation to the company Effia Stationnement and, lastly, the annulment of the litigation procedure. By an order n ° 1609916 of February 1, 2017, the judge of the summary proceedings of the administrative court of Melun canceled the procedure of transfer of the public service delegation.
By a summary appeal, a supplementary memorandum and a reply, registered on February 16, March 3 and May 3, 2017 at the litigation secretariat of the Council of State, the municipality of Saint-Maur-des-Fossés requests the Council to State:
1 °) to cancel this order;
2 °) settling the matter under the summary procedure, to reject the request filed by the company Urbis Park;
3 °) to charge the company Urbis Park with the sum of 5000 euros under article L. 761-1 of the code of administrative justice.
Considering the other parts of the file;
& #8211; the general code of local authorities;
& #8211; Law No. 2014-58 of January 27, 2014;
& #8211; the code of public contracts;
& #8211; the code of administrative justice;
After hearing in open session:
& #8211; the report of Mr. Marc Firoud, master of requests for extraordinary service,
& #8211; 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 it appears from the documents in the file submitted to the judge of the summary proceedings of the administrative court of Melun that, by a notice published in the Official Journal of the European Union of March 10, 2016, the town of Saint-Maur-des-Fossés launched a consultation with a view to concluding a public service delegation for the management of car parks and surface parking in the city; that at the end of this consultation, five companies were admitted to participate in the negotiation phase, including the company Urbis Park; that during this negotiation, the consultation rules were modified several times by the conceding authority; that, in its latest version, this document provided that candidates should submit their final offer by declining it according to two "scenarios", the first based on the absence of any subsidy paid by the municipality of Saint-Maur-des-Fossés to delegatee ("scenario" called "basic"), the second integrating the possible assumption, by the future delegatee, on January 1, 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 on the modernization of territorial public action and the affirmation of metropolitan areas ("scenario" says "optional"); that the commune finally gave up taking into account, at the stage of the appreciation of the offers, this second "scenario"; that by a letter dated November 25, 2016, the Urbis Park company was informed by the mayor of the commune of Saint-Maur-des-Fossés that its offer was not accepted; that, by an ordinance of February 1, 2017, against which the municipality appeals in cassation, the judge in summary proceedings, at the request of the company Urbis Park, canceled the procedure for awarding the contract;
- Considering, firstly, 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 have been harmed by the failings which it invoked, the judge in summary proceedings did not misrepresent the documents in the file submitted to him by considering that the company's offer could not be regarded as ignoring the rules of the consultation; that, if he also wrongly noted that negotiation was still possible, when it was a question of the company's final offer, this error only affects an overabundant reason for the order attacked;
- Considering, in the second place, that if it is up to the judge of the pre-contractual summary procedure to find out if the company which seizes him avails himself of failures which, having regard to their scope and to the stage of the procedure to which they relate, are likely to to have injured her or are likely to harm her, even if it was indirect by favoring a competing company, it is not her responsibility to find out as such whether the alleged breach was likely to harm the applicant more than the other candidates; that as a result, the judge of the pre-contractual summary of the administrative court of Melun did not commit error of law by not investigating if the failure invoked by the company Urbis Park had been likely to harm it more than its competitors; that, in order to judge moreover that the absence of evaluation of the entirety of the offer of a company by the conceding authority constitutes, on the part of this one, a breach of the obligations of equal treatment of candidates and the transparency of the procedures likely to injure the company, the judge of the pre-contractual summary order, contrary to what the commune maintains, marred his order, which is sufficiently motivated, neither error of law, nor misrepresentation, no error in the legal classification of the facts;
- Considering, finally, that it appears from the documents in the file submitted to the judge of the pre-contractual summary proceedings that the municipality of Saint-Maur-des-Fossés decided, after having substantially modified the rules of the consultation during the negotiation phase and without never having informed the candidates admitted to submit an offer of their choice, to renounce the "scenario" called "optional" and to proceed only to a partial examination of the different offers; that in considering 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 procurement procedure, the judge in summary proceedings did not commit an error of law;
- Considering that it results from what precedes that the commune of Saint-Maur-des-Fossés is not founded to request the annulment of the challenged ordinance; that the provisions of article L. 761-1 obstruct, therefore, that it is allowed his conclusions presented in respect of costs incurred by it and not included in costs; that there is however, under the same provisions, to charge him the payment of a sum of 3 500 euros to the company Urbis Park;
Article 1: The appeal of the municipality of Saint-Maur-des-Fossés is dismissed.
Article 2: The municipality of Saint-Maur-des-Fossés will pay Urbis Park a sum of 3,500 euros under article L. 761-1 of the code of 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 :
- Under Article L. 551-1 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate whom he delegates, may be seized in the event of a breach of the obligations of publicity and competition which is subject to the awarding by the contracting authorities of administrative contracts having as their object 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 or the selection of a shareholder economic operator of a company mixed economy with single operation (…). / The judge is seized before the conclusion of the contract ". Under article L. 551-2 of the same code: "I. & #8211; The judge may order the author of the breach to comply with his obligations and suspend the execution of any decision relating to the conclusion of the contract, unless he considers, in consideration of all the interests likely to be prejudiced and particularly in the public interest, that the negative consequences of these measures could outweigh their benefits. He can, moreover, cancel 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. (...) "; 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 these same aforementioned provisions of article L. 551-1 of the code of administrative justice, the persons empowered to act to put an end to the failings of the contracting authority in its obligations of publicity and competition are those likely to be harmed by such breaches. It is therefore up to the judge of pre-contractual interim measures to find out whether the company which seizes him avails himself of breaches which, having regard to their scope and to the stage of the procedure to which they relate, are likely to have injured him or are likely to Injury it, even indirectly, by favoring a competing business.
- 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 optionNevertheless 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 optionOf 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 :
- Under the terms of article L. 761-1 of the code of administrative justice: "In all proceedings, the judge orders the party liable to pay the costs or, failing that, the losing party, to pay the other party the amount he determines, in respect of costs incurred and not included in costs. The judge takes into account the equity or the economic situation of the sentenced party. He may, even ex officio, for reasons derived from the same considerations, say that there is no reason 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.