Companies: useful tips to enhance the application and offers!
In this case, the Council of State provides interesting clarifications on the one hand on the ways in which an economic operator can avail himself of the financial, technical and professional capacities of another economic operator; on the other hand on the limits according to which it can value its offer.
Teaching n ° 1: Conditions under which an economic operator may avail himself of the capacities of another economic operator
The Council of State has already had the occasion to remind several times that the public purchaser has the obligation to control the professional, technical and financial capacities of the candidates for the award of a public contract (EC 12 November 2015 SAGEM, No. 386578, EC 26 March 2008, Urban Community of Lyon, application No. 303779). and that in the event of a dispute, he must provide proof that he has actually been able to check the technical and financial capacities of the candidates as well as the evidence of this control: " It appears from the order under appeal that, in order to allow the plea that the successful group did not justify the requisite professional and technical skills and not have to resort to external means, the pre-contractual judge of the administrative court of Dijon was based on the absence of sufficient elements, in particular in the absence of the production by the department or grouping attribute, during the investigation, the application file of the grouping, so that it is checked the assessment that the department was required to make on the group's application (September 17, 2014, Delta Process Company, # 378722). These obligations also apply to the awarding of service concessions.
In order to promote its application, an economic operator may decide to avail itself of the financial, technical and professional capacities of other economic operators, whether it be its subsidiaries of the companies of the group to which it belongs or of any other third party entity. Article R 2142-3 of the Public Order Code states that for public contracts, a candidate may request that the professional, technical and financial capacities of other economic operators be taken into account, regardless of the nature of the links existing between these operators and him. This article reproduces the same provisions of Article 48 II of Decree No 2016-360 of 25 March 2016 on public contracts in force until 1st April 2019.
But in this case, it is up to the economic operator to justify that he will actually dispose of it if the contract is awarded. This is the reason why both the texts and the case law require the production of a written, dated and signed document which indicates that the economic operator in question is actually making available to the candidate his means for the performance of the services of the walk.
Article R2143-12 of the Public Order Code specifies that: if the candidate relies on the capacities of other economic operators, he justifies the capacities of this or these economic operators and provides proof that he will have them for the execution of the public contract. This evidence may be provided by any appropriate means ". The evidence submitted must take the form of a legally binding obligation, to ensure that the means and skills of the third-party company will actually be available to the incumbent company. This may be, for example, a dated and signed delivery agreement.
In this case, the Council of State recalls that the granting authority " can not select the offer of a candidate who has not justified his abilities ". In addition, the High Administrative Court notes that if the economic operator could avail himself of the financial capacities of his parent company, his application file contained no formal commitment from the latter so that his application should have been rejected.
Teaching n ° 2: On the limits of valuation of the offers
It should be remembered that under the provisions of Article L2152-2 of the French Public Order Code "An irregular offer is an offer that does not meet the requirements set out in the consultation documents, in particular because it is incomplete". The Council of State has already had the opportunity to consider as irregular, an offer that generally does not meet the requirements of the specifications (CE 25 March 2013, Department of Herault, n ° 364824).
In the present case, the Conseil d'Etat considers that the offer chosen is irregular since it proposed in ignorance of the consultation rules, a very significant number of social housing types "PLAI" and "PLUS", for which the builders benefited from large government subsidies and preferential borrowing rates, which were likely to significantly alter the economic balance of the contract. In addition, the tender selected provided for an additional density of approximately 2,000 m² on the site of the former hospital compared to the project presented in the program document, ie an increase of 10% of the surface area as well as four twenty-one additional parking spaces for a number originally provided for in the 533 consultation documents.
Lastly, the Conseil d'Etat considers logically that the defects that affect the contract are of a particularly serious nature since they ignore the irregularity of the bid and offer of the holder of the contract. The numerous irregularities in the bid and the offer of the contract holder are particularly flawed defects which require the cancellation of the contract as soon as they directly affect the choice of the holder of the contract without it being possible in this case of invoking an excessive violation of the general interest to avoid sanction.
CE 15 March 2019, SAGEM, No. 413584
Considering the following:
- It is apparent from the documents in the file submitted to the trial court that, by a public notice of competition published on 23 December 2010, the municipality of Saint-Tropez initiated a consultation procedure with a view to awarding a concession project on the urban restructuring of three sectors located in the city center: the convent, the slab of the Lices and the old hospital. After negotiations with four candidates, the offer of the company Kaufman and Broad Provence was retained. In accordance with a deliberation by the municipal council of August 2, 2011, the mayor of Saint-Tropez was authorized to sign the concession agreement, which he did on August 22 following. The joint-stock company Gardienne Mixed Economy (SAGEM), candidate ousted, before the administrative court of Toulon October 6, 2011 a request for cancellation of this agreement, that court rejected by a judgment of July 17, 2013. The Marseilles Administrative Court of Appeal dismissed SAGEM's appeal against this judgment in a judgment of 27 October 2014. The Conseil d'Etat, ruling on the dispute, annulled this judgment by a decision of 12 November 2015. and remitted the case to the Administrative Court of Appeal of Lyon. SAGEM appeals in cassation against the judgment of 22 June 2017 by which this court rejected his appeal.
On the appeal in cassation:
- It appears from the documents before the Court that, despite the seriousness of the irregularities affecting the validity of the disputed development concession agreement, there was no need to terminate or terminate the contract. annulment of that contract by reason of the excessive interference with the general interest which such measures would represent, the Lyon Administrative Court of Appeal, which was nevertheless seised of arguments developed by the parties on this point, confined itself to to state, in hypothetical and imprecise terms, the inextricable consequences of a possible annulment and the complexity of all the legal and financial arrangements that some might be called into question by such a measure. In doing so, it did not put the cassation judge in a position to carry out a legal qualification check on its assessment of the consequences to be drawn on the contract of the irregularities found and thus inadequately substantiated its decision. Consequently, and without it being necessary to examine the other grounds of appeal, SAGEM is justified in seeking the annulment of the judgment it is attacking.
- According to the second paragraph of Article L. 821-2 of the Code of Administrative Justice: "When the case is the subject of a second appeal in cassation, the Council of State ruled definitively on this case". Since the Conseil d'Etat has before it a second appeal on points of law, it is incumbent upon it to settle the case on the merits.
On the admissibility of the application:
- It follows from the investigation that SAGEM submitted an offer in the framework of the tender procedure concerning the concession in dispute. Thus, and even if its offer could have been rejected as irregular or unacceptable by the municipality of Saint-Tropez, the applicant company, as an ousted competitor, had a strong interest in seeking the annulment of the agreement at issue. It is irrelevant in this respect that SAGEM's contentious approach is motivated by allegedly illegitimate grounds. As a result, the objections of non-reception opposed by the municipality of Saint-Tropez and the company Kaufman and Broad Provence must be dismissed.
On the validity of the disputed contract:
- In the first place, the first two paragraphs of Article L. 300-4 of the Town Planning Code state in their wording applicable to the dispute that: "The State and the local authorities, as well as their public establishments, may grant the carrying out of the development operations provided for in this Code to any person having a vocation to do so. The allocation of development concessions is submitted by the grantor to an advertising procedure allowing the presentation of several competing offers, under conditions laid down by decree of the Conseil d'Etat ". Article R. * 300-8 of the same Code, then applicable, specified that: "The grantor chooses the concessionaire taking into account in particular the technical and financial capacities of the candidates and their ability to conduct the planned development operation, after having freely engaged any useful discussion with one or more persons having submitted a proposal ".
- Article 11.2 of the consultation regulation for the concession of the development operation Couvent Lices Hôpital indicates, with regard to the assessment of the economic and financial capacity of the candidates, that: "Each candidate will produce: / - his overall turnover and turnover relating to transactions comparable to the relevant service performed over the last three years, / - balance sheets and profit and loss accounts for the last three financial years available, / - the justification and nature of the financial guarantees provided for risk-taking to carry out the operation, under the conditions likely to preserve the interests of the community ". Pursuant to Article 5 of the same regulation, the contracting authority, which finds that parts for which production was requested is absent or incomplete, reserves the right to ask all the candidates concerned to complete their application file within a specified period. identical for all.
- It follows from the provisions cited above that the grantor must take into account the technical and financial capacities of the candidates for the development operation. If he has the option of asking a candidate, in compliance with the principle of equality, to complete his file so that he can justify his abilities, as well as provided for in Article 5 of the consultation rules of the disputed development concession, he can not legally select the offer of a candidate who has not justified his abilities.
It follows from the investigation that if the agreement in question was concluded between the municipality of Saint-Tropez and the company "Kaufman and Broad Provence", the latter had availed itself, during the negotiation with the candidates, financial support from its parent company, "Kaufman and Broad SA". Thus, its application file of April 2011 includes a presentation of the financial capabilities of "Kaufman and Broad SA", which it provides the balance sheets and annual accounts, and discusses the financial guarantees of the latter and an example of financial arrangement in another commune. Similarly, the town has produced coins, including letters or reports dated June and July 2011, showing the interest of the president of "Kaufman and Broad SA" in the development operation. Finally, a letter from Crédit Agricole dated 22 April 2011 was filed with the administrative court stating that the bank was willing to study the financing of the operation. However, since none of the documents produced can be regarded as a formal commitment, the municipality of Saint-Tropez could not deduce, when selecting candidates, that, for the project in question, the capacities and financial guarantees of the company "Kaufman and Broad SA" could be added to those of "Kaufman and Broad Provence". Therefore, as the SAGEM company argues, the municipality could not examine the offer of "Kaufman and Broad Provence" which had not justified by any documentary evidence that its parent company had put its capabilities and guarantees at its disposal.
Secondly, it is common ground that the purpose of the development operation was to build approximately 240 dwellings and, in particular, that the convent area had been subject to valid building permits allowing to realize seventy homes and commercial premises. In this respect, the program document of the concession treaty indicated that: "all building permits are transferred to the benefit of the concessionaire. These permits have been the subject of a valid project management contract. The developer will be responsible for continuing or terminating it under conditions to be determined with the licensor.
- As a result of the investigation, the building permit application files, on the basis of which the tenders were to be prepared, were drawn up by the Vieillecroze architecture firm, prime contractor of the municipality of Saint-Tropez. However, the same architectural firm was, under a paid service, the board of the company "Kaufman and Broad Provence", including during the negotiation phase of the offers during which building permits were still in instruction. If the documents produced before the court of reference establish that the firm Vieillecroze had offered its services to all the other candidates and participated in negotiations meetings also for Icade and Vinci Immobilier, the municipality could not ignore that the participation This intervener was, in the circumstances of the case, likely to provide Kaufman and Broad Provence with information likely to benefit him. Consequently, SAGEM is justified in claiming that the procedure followed did not respect the principle of equality between candidates.
Thirdly, the consultation regulation for the disputed concession indicated that "the provisional program authorizes the construction of approximately two hundred and forty dwellings divided by half at the two sites, for two-thirds into rent-controlled rental units and for one-third free housing ". The program document of the development concession agreement stated that "the prime objective is to create a rental offer located at around 20 % below the market price. There appears to be a real need for unregulated intermediate rental housing, between 10 and 13 euros / m² excluding charges. But also a demand at the margin for the placing on the market of an offer between 8 and 10 euros / m² excluding charges ".
However, it emerges from the direction that, pursuant to the deliberations of the Saint-Tropez municipal council of 2 August 2011 authorizing the mayor to sign the development concession with Kaufman and Broad Provence, the tender selected included, in lack of knowledge of the consultation regulation, a very significant number of social housing types "PLAI" and "PLUS", for which the builders benefited from large public subsidies and preferential borrowing rates, which were likely to significantly change the economic balance of the contract. In addition, the tender selected provided for an additional density of approximately 2,000 m² on the site of the former hospital compared to the project presented in the program document, ie an increase of 10% of the surface area as well as four twenty-one additional parking spaces for a number originally provided for in the consultation documents of 533. Therefore, the changes made at the signing stage of the agreement substantially modified the economics of the project put to the competition and thus infringed the rules of advertising and competition.
- It is up to the contract judge, when he establishes the existence of defects vitiating the validity of the contract, to appreciate the importance and the consequences. Thus, after taking into account the nature of these defects, it is up to it to decide that the continuation of the performance of the contract is possible, or to invite the parties to take regularization measures within a time limit that it fixed, except to terminate or terminate the contract. In the presence of irregularities which can not be covered by a regularization measure and which do not allow the continuation of the execution of the contract, it is his responsibility to pronounce, if necessary with a delayed effect, after having verified that his decision does not will not cause an excessive breach of the general interest, either the termination of the contract, or if the contract has an unlawful content or if it is affected by a defect of consent or any other defect of a particular gravity that the judge must thus automatically raise the total or partial cancellation of it. Lastly, if it is seised of the case, it may, including when it invites the parties to take regularization measures, grant a claim for compensation for the damage resulting from the infringement of injured rights.
- It follows from the investigation that the defects vitiating the contested agreement, drawn from the lack of knowledge of the rules of advertising and call for competition, also reveal, in the state of the investigation, a willingness of the public person to favor a candidate. and seriously affected the legality of the dealer's choice. By their particular gravity and in the absence of any possible regularization, they imply that the annulment of the disputed development concession should be declared void, since, contrary to what is argued in defense, such a measure will not affect excessive in the general interest.
- On the one hand, the annulment of a development concession does not in itself have the effect of annulling retroactively the acts passed for its application. In particular, it does not appear from the investigation that the administrative long-term leases concluded between the municipality and the developer for the realization of intermediate and social rental properties, which were the subject of separate acts, could still be contested. Likewise, the parties do not invoke any element which makes it possible to seriously estimate, in particular with regard to the provisions of Articles 555 or 1599 of the Civil Code, that annulment alone would have the effect of calling into question acts of private law concluded, either between the municipality and the developer or by the developer with third parties, for the acquisition, sale or rental of real estate situated on the perimeter of the development operation. Moreover, it is not even alleged that those acts are vitiated by any defect of consent which could lead the persons who acquired property made in the context of the development operation to contest them.
- On the other hand, neither the fact that the concession was completed in August 2017 and that the planned work would be completed, which is not such as to deprive a measure of annulment even no harm to the general interest, nor the assumption that an indemnity would be due by the municipality to the company Kaufman and Broad Provence, whose possible amount is not supported by any serious allegation and which can not in any case cause to appreciate that under the conditions of common law, are not likely to hinder the pronouncement of the cancellation of the contract.
- It will be for the parties to review the financial performance of the development concession canceled on the quasi-contractual ground of unjust enrichment and, where appropriate, on the ground of fault. Similarly, it will be up to Kaufman and Broad Provence to return the land or equipment that has not been the subject of a transfer of ownership.
- It follows from all the foregoing, without it being necessary to rule on the other grounds of the application, that SAGEM is justified in maintaining that it is wrong that, by its judgment of 17 July 2013, the Tribunal Administratif de Toulon rejected its request for the cancellation of the development concession concluded on August 22, 2011 by the municipality of Saint-Tropez and the company Kaufman and Broad Provence
The claims for the application of the provisions of Article L. 741-2 of the Administrative Justice Code:
- Under the provisions of Article 41 of the Law of 29 July 1881 reproduced in Article L. 741-2 of the Code of Administrative Justice, the courts may, in the cases before them, decide, even ex officio the suppression of abusive, outrageous or defamatory writings. However, contrary to what the applicant company maintains, the passage which it seeks to delete in the memoir of the company Kaufman and Broad Provence registered on 30 May 2016 before the Administrative Court of Appeal of Lyon does not exceed the limits of the controversy between parties in contentious proceedings and is not offensive, offensive or defamatory. The claims for its deletion must therefore be rejected.
The claims seeking the application of the provisions of Article L. 761-1 of the Code of Administrative Justice:
- It is appropriate, in the circumstances of the case and in respect of all the proceedings instituted, to charge the commune of Saint-Tropez and the Kaufman and Broad Provence company the sum of pay each to SAGEM under article L. 761-1 code administrative justice. These provisions, however, prevent an amount from being charged to SAGEM who is not, in the present case, the losing party.
Article 1: The judgment of 22 June 2017 of the Administrative Court of Appeal of Lyon, the judgment of 17 July 2013 of the Administrative Court of Toulon and the development concession signed on 22 August 2011 by the municipality of Saint-Tropez and the company Kaufman and Broad Provence are canceled.
Article 2: The municipality of Saint-Tropez and the company Kaufman and Broad Provence will each pay the sum of 3,000 euros to SAGEM under Article L. 761-1 code administrative justice.
Article 3: The conclusions presented by the municipality of Saint-Tropez and the company Kaufman and Broad Provence under Article L. 761-1 code administrative justice before the Administrative Court of Toulon, the Administrative Court of Appeal of Lyon and the Council of State are rejected.
Article 4: The surplus of the conclusions of SAGEM is rejected.