Assigning a qualifying technical score is not illegal under certain conditions
TA Versailles, Ord. September 21, 2020, Sté Atelier Jean-Baptiste Chapuis, n °2005666
The pre-contractual summary judge of the Administrative Court of Versailles recalls that no text or principle prohibits a public purchaser from providing for the attribution of an eliminatory technical score once this information has been brought to the attention of the all the candidates. However, in the event of a dispute, the level of elimination may be checked by the judge who will then take into account the specific nature of the services.
What you must remember :
Point n ° 1: The jurisprudential consecration of the eliminatory mark mechanism
The Public Order Code does not contain any provision concerning the possibility of awarding an eliminatory technical score. This mechanism has been validated both by administrative and community case law under certain conditions.
In a judgment of September 20, 2018, Montte SL / Musikene, Case C-546/16, the Court of Justice of the European Union considered that the eliminatory mark mechanism for rating the criterion of technical merit complies with the objectives of the public procurement directives and in particular the principles of transparency of procedures, non-discrimination and equal treatment of candidates (point 31) and to specify in point 32 that: " the contracting authorities have, in compliance with the requirements set out in the previous point of this judgment, the freedom to determine, in accordance with their needs, in particular, the level of technical quality that the tenders submitted must ensure according to the characteristics and the subject of the relevant contract and establish a minimum threshold that these offers must respect from a technical point of view. To that end, as the Commission argued in its written observations, Article 67 of Directive 2014/24 does not preclude the possibility, at the contract award stage, of excluding in firstly, tenders submitted which do not reach a predetermined minimum points threshold for the technical evaluation. In this regard, it appears that a tender which does not reach such a threshold does not, in principle, correspond to the needs of the contracting authority and should not be taken into account when determining the economically most advantageous tender. . The contracting authority is therefore not, in such a case, required to determine whether the price of such an offer is lower than those of the non-eliminated tenders which reach the said threshold and therefore correspond to the needs of the contracting authority. ".
The Court of Justice of the European Union thus considers that the tenders which are eliminated at the stage of the technical evaluation do not have to be rated with regard to the price criterion: " tenders submitted which do not reach a predetermined minimum point threshold at the end of this evaluation are excluded from further evaluation based on both technical criteria and price ". The complaint based on the neutralization of the price criterion therefore becomes ineffective both with regard to the regulations governing public contracts resulting from the new public contracts directives and to Community case law.
On page 5/14 of its sheet devoted to the examination of offers, the DAJ now recalls that public buyers are free to use the eliminatory score mechanism for the criterion of technical merit on the sole condition that this information has been provided. previously brought to the attention of candidates in order to respect the principles of transparency of procedures and equality between candidates.
The pre-contractual summary judge of the Administrative Court of Versailles takes up this case law on his own account, considering that no text or principle prohibits a public purchaser from providing for the attribution of an eliminatory mark as soon as this information has indeed been brought to the attention of all candidates
Point n ° 2: The judge's control over the level of the eliminatory mark
In its judgment of 20 September 2018, Montte SL / Musikene, Case C-546/16, the Court of Justice of the European Union also considers that public buyers have “ the freedom to determine, in accordance with their needs, in particular, the level of technical quality that the tenders submitted must ensure according to the characteristics and subject of the contract in question and to establish a minimum threshold that those tenders must comply with a technical point of view ". However, in his conclusions on this case, the Advocate General was careful to note that the applicant had refrained from contesting “ the proportionality of the expectations of the contracting authority which led to the setting of the threshold of 35 points at the technical stage ”(Point 55 of the conclusions).
Thus, in the event of a dispute, the choice of the level of elimination or, to put it another way, the importance of the eliminatory technical score, may be the subject of a control by the judge on the basis of the manifest error of assessment. It is then for the judge to operate a kind of proportionality check between the number of points awarded to the eliminatory mark and to check whether the level retained is not manifestly disproportionate given the specificity of the services.
This is what the judge of the pre-contractual summary of the Administrative Court of Paris recalled in an order of June 16, 2015, Sté Ansaldo STS France, n ° 15617: " Considering that no text or principle prohibits a contracting entity from providing for the attribution of an eliminatory score, once this information has been brought, as in this case, to the knowledge of all candidates ; that, moreover, by providing that an offer could be eliminated in the event of a rating less than 10/20 under the performance sub-criterion of the technical criterion, corresponding to the candidate's ability to meet the performance requirements " macro " in a constrained operating situation, in particular for checking the computing power of the equipment, to establish a draft performance management plan, to meet the technical performance requirements determined by the consultation letter and to justify, by a study of two practical cases, of the ability to analyze and monitor the performance of the rail system, SNCF and SNCF Réseau have not attributed to this sub-criterion disproportionate importance to the subject of the contract for the supply of a new system of train operations to be deployed as part of the extension of the RER E line ".
And even more clearly the judge of the pre-contractual summary of the Administrative Court of Versailles in his order of September 21, 2020: " If the applicant company argues that such a method of scoring offers has disproportionate consequences […… ..] this level of elimination is clearly related to the subject of the contract and aims to guarantee the ability of the services to fulfill the function assigned to them, under the specific conditions provided for in the consultation documents, having regard to the architectural and historical constraints to be respected and the purpose of the services which concern one of the greatest treasures of French heritage ".
Everything is therefore a matter of assessing a fair balance between the level of elimination of the criterion of technical merit and the technical nature of the services expected by the public purchaser. Taking into account the motivation adopted by the judge in this case, it is possible to consider that the solution would not have been the same in the face of the provision of services presenting no particularity or technical complexity.
TA Versailles, Ord. September 21, 2020, Sté Atelier Jean-Baptiste Chapuis, n °2005666
Considering the following:
- No text or principle prohibits the buyer from providing for the attribution of an eliminatory mark once this information has been brought to the attention of all candidates. In the present case, it follows from the investigation that the tenders of the tendering companies had to be assessed in the light of the two criteria defined in Article 5.2 of the rules for the consultation at issue, namely, on the one hand, the price of services, weighted at 30 %, on the other hand, the technical merit of the offers, weighted at 70 %, assessed according to three technical sub-criteria, themselves assigned a weighting. The same article also provides for the elimination of any offer obtaining a score below 35/70 for technical merit.
- On the one hand, if the applicant company claims that such a method of scoring tenders has disproportionate consequences, since it may have the effect of depriving the economically most advantageous tender of any possibility of obtaining the market and that it results in neutralizing the weighting of the price criterion, the object of such a method is, precisely, to eliminate non-compliant offers without then classifying them by application of the other rating criteria and sub-criteria .
- On the other hand, this level of elimination is clearly related to the subject of the contract and aims to guarantee the ability of the services to fulfill the function assigned to them, under the specific conditions provided for by the documents of the consultation. taking into account the architectural and historical constraints to be respected and the object of the services which concerns one of the greatest treasures of French heritage.
- Thus, and contrary to what the applicant maintains, the plea alleging the irregularity of the eliminatory score mechanism can only be rejected and the public purchaser cannot be regarded as having failed in its obligations of transparency or of compliance. of the principle of equality.