The firm obtains the rejection of the pre-contractual summary against the procedure of attribution of the audioguide market of the Château de Versailles!
The Public Establishment of the Château, the Museum and the National Estate of Versailles has launched an open tendering procedure on the basis of the provisions of Article 25 of Decree No. 2016-360 of March 25, 2016 relating to international markets. to cover its needs for the distribution of audioguides and the creation / production of audioguided courses for its visitors.
By a registered motion of February 7, 2018, the company Sycomore decided to refer to the judge of pre-contractual recalls on the basis of Article L. 55 1-1 of the Code of Administrative Justice to request the cancellation of the procedure of award by the Public Establishment of the Château, the Museum and the National Estate of Versailles of lot n ° 1 of the audioguides market and creation and production of audio / video LSF and the decision of 29 January 2018 by which the Public Establishment rejected his offer.
The firm Palmier-Brault-Associés defended the Public Establishment of the Castle, the Museum and the National Estate of Versailles in this case and obtained the rejection of the interim.
One of the interesting aspects of this case lies in the debate over the relevance of the use of the criterion of judging offers related to the performance of the professional insertion of public in difficulty.
In particular, the applicant company criticized the procedure on the ground that the Public Establishment of the Château, the Museum and the National Estate of Versailles could not legally analyze the bidders' offers on the basis of this criterion with regard to the object of the contract and its conditions of execution.
Article 62-II 2 ° of the decree of 25 March 2016 on public procurement, recalls that in order to award the public contract to the tenderer who submitted the most economically advantageous tender, the buyer can rely on:
" On a number of non-discriminatory criteria relating to the subject of the public contract or its conditions of execution within the meaning ofArticle 38 of the order of 23 July 2015 referred to above, including the price or cost criterion and one or more other criteria including qualitative, environmental or social. These may include, for example, the following criteria:(a) Quality, including technical merit and aesthetic or functional characteristics, accessibility, learning, diversity, production and marketing conditions, guarantee of fair remuneration for producers, innovative character, performance in the field of environmental protection, development of direct supplies of agricultural products, professional insertion of public in difficulty, biodiversity, animal welfare ".
Article 52-I of Ordinance No. 2015-899 of 23 July 2015 on public procurement states in the same sense that the public contract is awarded to the tenderer who submitted the most economically advantageous tender by applying criteria attributable to the subject of the contract or its conditions of performance, stating that the link with the subject of the procurement or its conditions of performance is assessed in accordance with Article 38 ".
Article 38-I of the Ordinance states that " the conditions of execution of a public contract may take into account considerations relating to the economy, innovation, the environment, in the social field or in employment, at provided that they relate to the subject of the public contract ".
The pre-contractual judge is effectively competent to verify the soundness of the use of a criterion or a sub-criterion for judging the tenders with regard to the subject of the contract solely on the basis of the manifest error in other words, in the event of a gross error (CE 15 February 2013, Société Derichebourg Polyurbaine, n ° 363921).
Contribution of the pre-contractual injunction of the Administrative Court of Versailles
The pre-contractual injunction of the Administrative Tribunal of Versailles is interesting in that it recalls the principle that, in the context of a procedure of awarding a contract which, in view of its object, is likely to at least in part by staff engaged in an integration process, the contracting authority may legally provide for the assessment of the tenders with regard to the criterion of professional integration of the public in difficulty mentioned in (a) of 2 ° of the II of Article 62 of the Decree of 25 March 2016 on public procurement, since this criterion is not discriminatory and allows him to objectively assess these offers.
Most importantly, the pre-contractual judge has gone further by considering that it follows from the provisions of I of Article 38 of the Ordinance of 23 July 2015 on public procurement that are deemed to be related to the subject of the public procurement contract. terms and conditions relating to supplies and services to be provided pursuant to the procurement contract, in whatever respect and at any stage of their life cycle, for the purpose of performance of the disputed market, which consists of the provision of audio guides, necessarily include steps relating to the production, transport, maintenance and the end of use of the apparatus and that these stages of the life cycle , which are deemed related to the object of the contract, are likely to be executed by personnel engaged in a process of insertion so that the Public Establishment of the Castle, the Museum and the Domain Versailles could legally provide for the assessment of the offers with regard to the criterion of professional integration of the public in difficulty.
This motivation is therefore very interesting to justify the legality of the use of the criterion relating to performance in terms of professional integration of public in difficulty.