Pay attention to the method of rating the price criterion!
This case recalls that a method of rating that has the effect of neutralizing one or more criteria for judging offers must be considered discriminatory. Such a failure is unlikely to lead to the annulment of the contract award procedure if it results from the investigation that, irrespective of the grading method chosen, the applicant had no chance of being declared the successful tenderer. .
Rule n ° 1: Provision of aeronautical harnesses on military aircraft constitutes a defense market which can not be annulled by the judge of summary
The first question that arose was whether the market constituted a defense market within the meaning of Article 2 (II) of Ordinance No. 2005-649 of 6 June 2005.
In this regard, the Conseil d'Etat notes that the contract concerned aeronautical harnessing services on military aircraft, in particular on fighter aircraft. He concluded that the contract was for works, supplies and services directly related to war materiel and was, therefore, a defense market.
However, Article L.551-2 of the Code of Administrative Justice, which allows the judge to order the author of a breach of the obligations of advertising and competition to comply with its obligations and suspend the execution of any decision relating to the awarding of the contract, as well as the annulment of decisions relating to the award, provides an exception for contracts in the fields of defense or security.
The Conseil d'Etat deduces from this that the judge hearing the application for interim measures could not annul the contested contract but could only pronounce, if necessary, the injunction and penalty measures provided for in Article L. 551-6. of the Administrative Justice Code. It therefore declares the order under appeal void for error of law.
Rule 2: A weighting of the price too high compared to that of the other criteria may taint the award procedure
The second question was about the weighting of the selection criteria. For the award of the contested contract, the AIA had defined three weighted criteria as follows: price (60 %), technical value (30 %) and social policy (10 %). The applicant company which had requested the annulment of the procedure argued that the high weighting of the price neutralized the other two criteria.
On this point, the Council of State recalls that the contracting authority freely defines the rating method for the implementation of each of the bid selection criteria it has defined and made public; whereas, however, these methods of marking are tainted with irregularity if, in breach of the fundamental principles of equal treatment of candidates and transparency of procedures, they are, of themselves, such as to deprive of their scope the criteria of selection or to neutralize their weighting and are therefore likely to lead, for the implementation of each criterion, that the best score is not awarded to the best offer, or, in the light of the overall weighted criteria, that the most economically advantageous tender is not chosen ".
In this case, the Conseil d'Etat considers that the rating method used for the price criterion of awarding the highest score to the lowest bid and the zero rating to the most expensive bid has the effect of , taking into account the weighting of the price at 60% to neutralize the other two criteria by automatically eliminating the most expensive offer, regardless of the difference between its price and that of other offers and even if it would have obtained the higher marks on the other criteria.
The economically most advantageous offer being thus eliminated in favor of the best offer on the sole criterion of price thanks to the method of notation, and whatever the number of candidates, the Council of State considers that this rating method constitutes a breach of the competitive bidding requirements.
However, since the eliminated company obtained a score lower than that of the successful tenderer on the criterion of technical merit and a score of zero on that of social policy, it considers that the applicant company could not claim that breach.
Board of state
N ° 405787
7th - 2nd rooms together
IN THE NAME OF THE FRENCH PEOPLE
Play of Wednesday, May 24, 2017
Considering the following procedure:
The company Techno Logistique asked the Judge of the Court of Clermont-Ferrand Administrative Court, on the one hand, to enjoin the Minister of Defense (Clermont-Ferrand Aerospace Industry Workshop) to communicate to him the reasons for rejection its offer concerning an aircraft harness supplies contract and, on the other hand, to cancel the procedure for awarding this contract.
By an order n ° 1601950 of November 23, 2016, the judge of the Clermont-Ferrand administrative court canceled the procedure of awarding this contract and rejected the surplus of the conclusions of the parties.
By appeal and three new pleadings, registered on 8 December 2016 and on 6 January, 5 April and 5 May 2017 to the litigation secretariat of the State Council, the Minister of Defense asks the State Council:
1 °) to cancel this order;
2 °) settling the case under the procedure of interim relief, to reject the surplus of the request of the company Techno Logistique;
3 °) to charge the company Techno Logistics the sum of 3 200 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- Order No. 2005-649 of 6 June 2005;
- Ordinance No. 2015-899 of 23 July 2015;
- 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 Mr Gilles Pellissier, public rapporteur.
The word having been given, before and after the conclusions, to the SCP Nicolaÿ, of Lanouvelle, Hannotin, lawyer of the company Techno Logistique.
- Considering that it appears from the documents of the file submitted to the judge of the summary of the Clermont-Ferrand administrative tribunal that, by a notice of public invitation to the competition, the Industrial Workshop of the aeronautics (AIA) of Clermont-Ferrand has entered into a restricted tendering procedure with a view to awarding a contract for the supply of aeronautical harness; that, by mail of October 28, 2016, the AIA Clermont-Ferrand informed the company Techno Logistique the rejection of its offer and, by mail of November 16, 2016, communicated to him the reasons for this rejection; that the Minister of Defense appeals in cassation against the order of November 23, 2016 by which the pre-contractual judge has, at the request of the company Techno Logistique, canceled the award procedure of this market and rejected the surplus of submissions made by the parties; that the appeal of the Minister must be regarded as directed against this order in so far as it grieves him;
- Considering, on the one hand, that according to the 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 case of failure to the obligations advertising and tendering procedure to which the contracting authorities are subject to 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 to exploitation (...) "; that under the terms of Article L. 551-2 of the same code, in its wording applicable to the market in dispute: "I. - The judge can order the author of the failure to comply with his obligations and suspend the execution of any decision relating to the awarding of the contract (...) / It may, moreover, annul the decisions relating to the awarding of the contract and delete clauses or requirements intended to be included in the contract and which do not said obligations / II - However, the I is not applicable to the contracts passed in the fields of defense or security within the meaning of II of the article 2 of the ordinance n ° 2005-649 of June 6 2005 relating to contracts awarded by certain public or private persons not subject to the public procurement code / For these contracts, Articles L. 551-6 and L. 551-7 "are applied; that according to the article L. 551-6 of the same code: "The judge can order the author of the failure to comply with his obligations by setting a deadline for this purpose.It can order him to suspend the execution of any decision relating to the awarding of the contract (...) "; that according to the article L. 551-7 of the same code: "The judge can however, considering all the interests likely to be aggrieved and in particular of the public interest, to dismiss the measures set out in the first paragraph of Article L. 551-6 when their negative consequences may outweigh their benefits ";
- Considering, on the other hand, that under Article 2 (II) of the Ordinance of 6 June 2005 on contracts awarded by certain public or private persons not subject to the Public Procurement Code, in force on the date of the litigation, included in Article 6 of the Ordinance of 23 July 2015 on public procurement: "The contracts and framework agreements for defense or security are the contracts and framework agreements whose object is: / 1 ° The supply of equipment, including their parts, components or subassemblies, intended for use as weapons, ammunition or war material, whether designed specifically for military purposes or originally designed for civil use and then adapted for military purposes; / (...) 3 ° Works, supplies and services directly related to equipment referred to in 1 ° or 2 °, (...) for all or part of the life cycle equipment, the life cycle equipment is all the successive states that he can know, including (...) repair, modernization, modification, maintenance, logistics, (...) ";
- Considering that the documents in the file submitted to the judge hearing the application for interim relief show that the contract in dispute concerned supplies of aeronautical harnesses on military aircraft, in particular on fighter aircraft; that it thus relates to works, supplies and services directly related to a war material and constitutes, consequently, a defense market within the meaning of II of article 2 of the order of 6 June 2005 mentioned above; that it follows from the aforementioned provisions of II of Article L. 551-2 Code of Administrative Justice that the judge of the interim administrative court Clermont-Ferrand could not pronounce the cancellation of such a market on the basis provisions of I of this article but only to pronounce, if necessary, the injunction and penalty measures provided for in Article L. 551-6 of the same Code; it follows from this that the judge of interim relief, based on provisions of the Code of Administrative Justice not applicable to the market in dispute, committed an error of law by canceling the contract in dispute and that his order must be annulled, without it being necessary to pronounce on the means raised by the minister;
- Considering that, in the circumstances of the case, it is necessary, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interlocutory proceedings initiated by the company Techno Logistics;
- Considering, in the first place, that the contracting authority freely defines the rating method for the implementation of each of the bid selection criteria it has defined and made public; whereas, however, these methods of marking are tainted with irregularity if, in breach of the fundamental principles of equal treatment of candidates and transparency of procedures, they are, of themselves, such as to deprive of their scope the criteria of selection or neutralize their weighting and are therefore likely to lead, for the implementation of each criterion, that the best score is not awarded to the best offer, or, in the light of the overall weighted criteria, so that the most economically advantageous tender is not chosen; This is the case even though the contracting authority, which is not obliged to do so, has made public such methods of notation in the notice of competition or in the consultation documents;
- Considering that the AIA Clermont-Ferrand set, for the award of the public contract in question, three criteria: price, technical value and social policy, weighted respectively to 60 %, 30 % and 10 %; that the company Techno Logistique supports, the method of notation retained by the AIA of Clermont-Ferrand, leading automatically, on the criterion of the price, to the attribution of the maximum score of 20 to the offer the least price, the effect is, given the high weighting of this criterion, to neutralize the two other criteria by automatically eliminating the most expensive offer, whatever the difference between its other offers and even though it would have obtained the highest marks on the other criteria; It may thus have the effect of eliminating the economically most advantageous offer in favor of the best-selling offer on the sole criterion of price, irrespective of the number of candidates, contrary to what the Defense Minister ; it follows from what has been said in point 6 that by adopting such a rating method for the award of the contested contract, the AIA has failed to meet its competition requirements;
- Considering, however, that it follows from the investigation that the company Techno Logistique obtained a score lower than that of the company awarded the contract on the criteria of the price and the technical value and an equal score (zero) on the criterion social; In this way, the company Techno Logistique could not be harmed by the breach noted in point 7 since it was not, whatever the method of rating chosen, not likely to be awarded the contentious market; It follows from the foregoing that the company Techno Logistique is unfounded to avail itself of the breach of the obligations of call for competition noted in the previous point;
- Considering, secondly, that the company Techno Logistique maintains that the AIA Clermont-Ferrand distorted the terms of its offer by considering that it did not meet the social criterion; whereas, however, the investigation shows that the applicant company did not complete the schedule provided for in the consultation documents in order to describe its efforts in the social field; that, consequently, this means must be rejected;
- Considering, lastly, that the company Techno Logistique maintains that no reason, even of urgency, justifies that a new market is concluded by the AIA before the expiry of the market with purchase orders of which it holds, which has an object similar to the one in dispute; that, however, the control exercised by the pre-contractual judge can not relate to the possible consequences of the application of the stipulations of another contract, the execution of which is in progress;
- Considering that it follows from the above that the company Techno Logistique is unfounded to ask the judge pre-contractual interim to pronounce one of the measures provided for in Article L. 551-6 code administrative justice;
- Considering that the conclusions presented by the company Techno Logistique under Article L. 761-1 code administrative justice can, therefore, be rejected; whereas, on the other hand, it is appropriate to charge Techno Logistique the payment to the State of the sum of EUR 1 000 under the same provisions;
Article 1: The order of 23 November 2016 of the summary judge of the administrative court of Clermont-Ferrand is canceled.
Article 2: The request of the company Techno Logistique presented before the judge of the Clermont-Ferrand Administrative Court and its conclusions presented to the Council of State tending to the application of the article L. 761-1 of the code of administrative justice are rejected.
Article 3: The company Techno Logistique will pay to the State a sum of 1 000 euros under article L. 761-1 code administrative justice.