Open invitation to tender: the regularization of an irregular offer is a simple faculty!
Rule n ° 1: the regularization of an irregular offer is a faculty and not an obligation
According to Article 59 of the Public Procurement Decree of 25 March 2016, an irregular offer is an offer that does not comply with the requirements set out in the consultation documents, in particular because it is incomplete. Contrary to the old regulation which prohibited any possibility of regularizing an irregular offer, the new regulation resulting from the decree of March 25th, 2016 set up a system of regularization of the irregular tenders in the procedures of call for tender and the adapted procedures. without negotiation.
Article 59 states that the buyer " can authorize All tenderers concerned to regularize irregular offers within an appropriate period, provided that they are not abnormally low and that regularization does not have the effect of modifying the substantial characteristics of tenders.
When the public purchaser decides to use the device for regularization of irregular offers of Article 59 of the Decree of 25 March 2016, he is obliged to make available to all tenderers who have submitted an irregular offer within an appropriate period of time. is not specified if it must be identical according to the irregularities found and for all candidates. we can imagine that yes but nothing is specified by the texts. In addition, the public purchaser is not obliged to inform the other tenderers who have submitted a regular offer of the installation of the device.
In this case, the Council of State reminds that in tender procedures and adapted procedures without negotiation, the regularization of an irregular offer remains a mere faculty and not an obligation.
Rule n ° 2: The methods of assessing the irregularity of an offer
In that case, the rules of the consultation specified that the criterion for judging tenders relating to the number of qualified personnel specifically assigned to the contract would be judged in the light of the elements given in the technical memorandum. The regulation also stated that the candidate had to provide any evidence to ensure that he will have the necessary personnel to perform the contract (promise to hire, subcontracting, interim ...) and that the absence such justifications may lead to non-compliance of the offer.
These requirements were intended to ensure that the candidate companies would actually have the personnel they were using. However, although the applicant company did indeed communicate in its tender the list of the names of the various personnel who would be assigned to the contract, it did not produce any supporting evidence in support of that statement in accordance with the requirements of the regulation of the consultation, so that his offer was considered irregular without the public purchaser being required to regularize it.
Board of state
April 26, 2018
- Considering that it emerges from the statements in the order under appeal that the Department of Bouches-du-Rhône has launched an open tendering procedure with a view to awarding contracts for the purpose of carrying out the work of maintenance, renovation, repair and improvement of buildings of its real estate heritage; that it rejected as irregular the offer that the company Inéo Provence and Côte d'Azur had presented for the lot n ° 10, "electricity"; that it appeals in cassation against the order of December 20, 2017 by which the pre-contractual judge of the interim injunction canceled, at the request of the company Inéo Provence and Côte d'Azur and on the basis of the provisions of the article L. 551-1 of the Administrative Justice Code, the procedure for awarding the contract at the stage of the analysis of the offers;
- Considering that according to the article L. 551-1 of the code of administrative justice: "The president of the administrative court, or the magistrate which he delegates, can be seized in case of failure to the obligations of publicity and implementation. the award by the contracting authorities of administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic counterpart consisting of a price or a right of exploitation, or the delegation of a public service (...) ";
- Considering that according to the article 59 of the decree of March 25th, 2016 relative to the public markets: "I. The buyer checks that the offers (...) are regular, acceptable and appropriate / An irregular offer is an offer which does not comply with the requirements set out in the consultation documents, in particular because it is incomplete (...) / II In tendering procedures and adapted procedures without negotiation, irregular, inappropriate or However, the buyer may authorize all tenderers concerned to regularize irregular tenders within an appropriate period, provided that they are not abnormally low (...) / IV The regularization of irregular tenders can not be have the effect of modifying the substantial features of the offers (...) "; whereas it follows from these provisions that, in the tendering procedures, the buyer may authorize all tenderers whose tenders are irregular to regularize it, since it is not abnormally low and that the regularization does not have the effect of modifying its substantial characteristics, but it is only a simple faculty offered to it, not an obligation;
- Considering, consequently, that whatever were the motives which led the Department of Bouches-du-Rhone not to invite the company Inéo Provence and Côte d'Azur to regularize its offer, the judge of the pre-contractual summary of the administrative tribunal de Marseille erred in law in finding that the department could not eliminate it without first inviting the company to regularize it; that it follows that the department of Bouches-du-Rhone is founded, without it being necessary to examine the other ground of its appeal, to ask the annulment of the order contested
- Considering that, in the circumstances of the case, it is necessary, in application of the provisions of Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interlocutory proceedings initiated;
- Considering that under Article 6.2 of the consultation regulation: "(...) Pursuant to Article 62 II of the Procurement Decree, the criteria for judging tenders are as follows: (.. 2) The number of qualified personnel specifically assigned to the contract, judged by the elements given in the technical brief.It is recalled that the candidate must provide any evidence to ensure that he will have the necessary staff execution of the contract (promise of hiring, subcontracting, interim ...) The absence of these justifications could lead to non-conformity of the offer.This criterion will be noted from 0 to 5 and then restored to base 100 then weighted (10 %) The candidate's attention is drawn to the fact that he must specify in his thesis the profiles of the performers he intends to assign to the performance of the contract. for each profile his qualifications and s references (...) ";
- Considering that the requirements laid down by the Rules of the Consultation at the stage of the examination of tenders can not be regarded as being addressed only to small or newly created undertakings and as not applying to society applicant; that these requirements were intended to ensure that the candidate companies did in fact have the personnel they had been using, given the difficulties encountered by the department in a previous procurement procedure for the same services, and were therefore with the purpose of the contract; that it follows from the instruction that, if the company Inéo Provence and Côte d'Azur communicated the list of names of the various personnel who would be assigned to the market, it has not produced any evidence in support of this statement; that even assuming that the department has insufficiently motivated the rejection of the offer of the company, the relevant information was provided to the applicant in the context of the present procedure pre-contractual interim; that, consequently, the company, which does not usefully criticize the aforementioned provisions of the regulation of the consultation, is unfounded to maintain that the department of Bouches-du-Rhone would have failed in its obligations of publicity and competition rejecting his offer as irregular without inviting him to regularize it;
- Considering that it follows from the foregoing that the application of the company Inéo Provence and Côte d'Azur must be rejected, including its conclusions submitted on the basis of Article L. 761 of the Code of Administrative Justice;
- Considering that the provisions of Article L. 761-1 code administrative justice prevent an amount to be charged to the Department of Bouches-du-Rhone which is not, in the present case, the losing party; that there is however place, in the circumstances of the case, to put at the charge of the company Inéo Provence and Côte d'Azur the payment of a sum of 4 500 euros to the department of Bouches-du-Rhône in respect of costs incurred both before the administrative tribunal and the Conseil d'Etat;
Article 1: The order of 20 December 2017 of the summary judge of the Administrative Court of Marseille is annulled.
Article 2: The application submitted by the company Inéo Provence and Côte d'Azur is rejected.
Article 3: The company Inéo Provence and Côte d'Azur will pay the department of Bouches-du-Rhône a sum of 4 500 euros, under Article L. 761-1 code administrative justice.
Article 4: The conclusions presented by the company Inéo Provence and Côte d'Azur under article L. 761-1 code administrative justice are rejected.
Article 5: This decision will be notified to the Department of Bouches-du-Rhone and the company Inéo Provence and Côte d'Azur.