Pre-contractual & Contractual referral
The pre-contractual procedure referred to in Article L 551-1 of the Administrative Justice Code makes it possible to sanction breaches of the publicity and competition requirements that may affect the award of public contracts, public service delegations, partnership agreements and all the contracts subject to the order n ° 2015-899 of 23 July 2015 relative to the public markets and to the ordinance n ° 2016-65 of 29 January 2016 relative to the concession contracts.
As long as the contract is not signed, a candidate evicted or prevented from participating in a publicity and competition procedure can introduce several successive pre-contractual summary proceedings. Only the signing of the contract renders the pre-contractual summary inadmissible.
What you must remember :
Point n ° 1: The possibility of introducing several successive pre-contractual summary proceedings as long as the contract has not been signed
The introduction of a pre-contractual summary is not locked into any particular time limit. Article L 551-1 of the CJA only indicates that the judge must be consulted before the contract is concluded. Thus, the fact that more than two months have elapsed between the notification of the rejection of the offer and the lodging of the request has no effect on the admissibility of the latter since the contract is not yet signed (CE December 14, 2009, municipality of La Roche-sur-Yon, n ° 325830).
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.
The public purchaser freely determines the weighting of the criteria for judging the offers. However, it cannot legally use a weighting, in particular for the price criterion, which clearly would not allow, having regard to the characteristics of the market, to select the economically most advantageous offer. The control of the judge is however limited to a limited control concerning the relevance of the weighting chosen by the public purchaser.
Incompetence of the judge of the pre-contractual summary procedure to control the competence of the public purchaser who launches the procedure!
In this case, the Council of State confirms its case-law according to which it is not for the judge of the pre-contractual summary procedure to control the competence of the public purchaser who launches the procedure. The sole circumstance that the procedure for the conclusion of the contract is initiated and conducted by a public person who is not yet competent to sign it does not result in the irregularity of the procedure for the conclusion of the procedure.
An ousted candidate who has submitted an irregular offer may contest the award of the contract to an offer which is also irregular
The Council of State now considers that within the framework of a pre-contractual or contractual summary procedure, the fact that the offer of the ousted competitor is irregular does not prevent it from being able to take advantage of the irregularity of the offer of the company awarded the contract to obtain the cancellation of the procedure or the contract. In this hypothesis, the judge in summary proceedings cannot invoke the irregularity of the offer of the ousted candidate and must examine the regularity of the offer of the successful candidate.
The Council of State clarifies the scope of the incomplete nature of an offer by considering that an offer of a candidate who does not include a prefectural approval necessary for the performance of the services of the market but not required by the regulation the consultation does not allow to declare the offer irregular.
The Council of State recalls that an offer that does not include all the documents or information required by the documents of the consultation is irregular and must be eliminated. The consultation rules may also be that for the rating of a criterion, an offer that does not contain certain information may be awarded a score of zero.
Teaching n ° 1: An offer that does not respect a mandatory prescription of the regulation of the consultation is irregular
The texts and the case law recall the mandatory nature of the consultation rules
The Council of State reiterates the conditions under which a local authority or a public cooperative institution may apply for the award of a public contract and the scope of the judge's review of the summary proceedings in the event of a dispute with the from a competitor who has been ousted.
Teaching n ° 1: a public institution can be a candidate for the signature of a contract subject to the respect of the principle of specialty
The Council of State has already had occasion to recall that the public persons can be candidates for the attribution of a contract of the public order, in the same way and under the same conditions as a private enterprise (EC, opinion , 8 November 2000, Jean-Louis Bernard Consultants, Rec., 492).
On the possibility of setting the maximum amount of a framework agreement to purchase orders during the procedure!
In connection with the signing of a framework agreement with purchase orders, an unsuccessful candidate obtained from the Toulon Administrative Court the cancellation of the procedure on the grounds in particular of the absence of a maximum amount previously set by the buyer. . This order was annulled by the Council of State and is the subject of our comment.
Teaching n ° 1: the pre-contractual summary for the security and defense markets is not that of Article L. 551-1 of the Code of Administrative Justice
If it is customary to always associate the provisions of Article L. 551-1 of the Code of Administrative Justice with the pre-contractual summary, we must not lose sight of the II of Article L. 551-2 the same code. In fact, for contracts relating to defense or security matters, the unsuccessful candidate must refer the case to the pre-contractual judge on the basis of the provisions of Articles L. 551-6 and L. 551-7 of the Administrative Justice Code. .
In this case, the Conseil d'Etat considers that the abnormally low price of an offer is assessed in relation to its overall price and the mere fact of proposing a financial offer that refrains from charging certain services is not sufficient. in itself to consider the offer as abnormally low.
Teaching n ° 1:
Whatever the procurement procedure and the type of contract, it is the responsibility of the contracting authority, who finds that an offer appears abnormally low, to request from the author all the details and justifications that would explain the price proposed in application of Article 60-I of Decree No. 2016-360 of 25 March 2016 on public procurement. If the clarifications and justifications provided are not sufficient to ensure that the proposed price is not regarded as clearly undervalued and thus likely to compromise the proper performance of the contract, it is then up to the bidder to reject his bid, except undermine the equality of candidates for the award of a public contract.